Kailash and Others vs State of M.P.

R.B. Dixit, J.

All the three applications (M. (cr) P No. 1125/01, 1126/01 and 1052/01) are being taken up together for hearing and disposal by this common order although they are concerned with two different cases, as common question of law is involved for consideration therein.

In criminal Appeal No. 473/97, earlier application of appellant-accused Manoj was dismissed vide the order dated 13.10.1999, looking to the facts and circumstances and the role assigned to the appellant Manoj. However, in case of appellant-accused Kailash his earlier application for bail was dismissed by this court vide the order dated 23.2.2001, taking into consideration the facts and circumstances brought on record Including the deposition of widow of deceased Bhuria (P.W.2) who was an eye witness and the other eye witnesses who have been relied upon by the trial court and other relevant facts and circumstances and further that no exeptional circumstance has been made out for the grant of release on bail as sought for in view of what has been indicated above including the observations of the Hon''ble the Apex Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and others reported in AIR 2000 SCW 3602, one of us (Hon''ble Shri S.P. Srivastava, J.) was member of the Division Bench in both the above orders passed by this Court.

Both Kailash and Manoj have filed these subsequent bail applications for release on bail on the ground of parity with other co-accused Chhutkan, Laxman and Murari who were allowed bail vide the order dated 6.7.2001 mentioning therein "looking to the evidence available on record." Although on fact there seems to be parity between the role assigned to the present appellants and the co-accused Chhutkan, Murari and Laxman who were allowed bail. However, it seems to us that if the previous rejection orders of the present applicants would have brought to the knowledge of the Division Bench which passed the order dated 6.7.2001, the position of the earlier orders indicating consideration of a ruling of the Apex Court regarding non-availability of any exceptional circumstance might have been clarified.

In Criminal Appeal No. 515/99, Gajraj''s earlier, bail application was heard by a Division Bench comprising Hon''ble Justice Shri R.S. Garg and myself (Hon. Justice R.B. Dixit) and vide order dated 16.2.2000, the application was rejected "after going through the statements of the witnesses, the character of the evidence and the findings recorded by the trial court that after felling the deceased each of the accused caused injuries to the deceased, two of the accused throttled him and thereafter all the four accused threw him in the burning hutment."

Now, the appellant-accused, Gajraj Singh by the present application claiming parity with co-accused Sohan Singh who was allowed bail by order dated 2.7.2001 by this Court on the ground "prima-facie it seems that the prosecution has not placed the genesis of crime properly and accurately before the Court. How the incident took place and where it took place has not been clearly mentioned by the prosecution witnesses which is an important aspect of the case and the possibility of the participation in the crime which is essential particularly when the injuries have been sustained by the accused party and both the groups have been examined by the same doctor."

While considering the parity of Gajraj Singh with Sohan Singh we are not left with any doubt that he too is entitled to bail on the ground of parity. However, we feel that had the previous order of this court dated 16.2.2000 regarding "the character of the evidence and the finding recorded by the trial court that after felling the deceased each of the accused caused injuries to the deceased, two of the accused throttled him and thereafter all the four accused threw him in the burning hutment" had been brought to the knowledge of the Division Bench which passed order dated 2.7.2001 releasing Sohan Singh on bail the above two conflicting opinions would have been reconciled to some extent.

While considering the present applications we were brought in some what embarrassing position in reconsidering our previous orders rejecting the bail of the present applicants though on the ground of parity as it transpires to us that had the previous rejection orders were brought to the knowledge of the Division Bench which allowed bail to co-accused persons, the conflicting opinions recorded by the Division Bench would have been reconciled to some extent. This necessitated hearing of the parties on the point of devising some method for future guidance so that the previously rejected bail orders may be brought to the knowledge of the Court for passing appropriate orders maintaining consistency with regard to similarly placed accused persons in a case.

In a case of Ishwar v. State of M.P. reported in 1989 (I) M.P.W.N. 54, during the course of hearing of the bail petition, a striking feature more disturbing has come to light. An application for bail u/s 439 Cr.P.C. was presented to the High Court by the same counsel who appeared before the Sessions Court. However, the bail petition was got dismissed as not pressed although the case-diary was also available with the motive of bench-hunting. It was observed by the learned Single Judge of this court that while recognising the right of an accused to bail, on grounds made out and to make as many attempts to that end as desired, without clogging this right in any manner, the least that is expected, is to make a frank and candid disclosre of facts either about dismissals of or simultaneous pendency of such petitions before different forums. It is certainly not desirable to go on bench-hunting by suppressing a very material fact of simultaneously pending applications before the High Court as well as court of Sessions. It is not with a view to curtail the scope of bail by passing this order but what is intended is, to invite attention of the Courts, to this unhealthy practice of suppression of material facts, at times indulged in, for obtaining bail orders, make simultaneous applications to the Court of Sessions as well as the High Court, which is all the more convenient at places having High Court seats.

Learned Single Judge of the Allahabad High Court in case of Shobha Ram Vs. State of U.P., , where an application for bail by accused-applicant and a co-accused was rejected by High Court, and subsequently the co-accused has been granted bail on second application, observed that the claim of parity should not be denied merely because the other co-accused, who was granted bail, did not inform the court about the rejection of bail application of other co-accused by different Benches.

In a Division Bench decision of Allahabad High Court in case of Nanha Vs. State of U.P., while considering the meaning of "Parity" it was observed that it means the state or condition being equal or on a level, equality, equality of rank, or status. In other words it means being placed at the same footing. All the accused of a case always do not stand on the same footing. While considering bail of different accused the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands on identical footing. Nonetheless the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a judge in a tight and strait-jacket to grant bail automatically. There may be case which may require an exception, where a judge may not simply take a different view from the judge who granted bail earlier to a co-accused but where the conscience of the judge revolts in granting bail in such a situation the judge may choose to depart from the rule, recording his reasons. However, such cases would be very few. It is not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously.

If bail is granted to one co-accused the other co-accused whose case stands on the same footing is entitled to bail it can not be said that it is open to different Judges to reject or grant bail to accused, even if their cases stand on same footing. The High Court is one Court and each Judge is not a separate High Court. It will be unfortunate if the High Court delivers inconsistent verdicts on identical facts. The public whose interests all judicial and quasi judicial authorities ultimately have to serve, will get a poor impression of a court which delivers contrary decisions on identical facts. Hence, for the sake of judicial uniformity and non-discrimination it is essential that if the High Court grants bail to one co-accused it should also grant bail to another co-accused whose case stands on the same footing.

Judicial consistency is a sound principle and it cannot be thrown to the winds by the individual view of judges. After all the judicial discretion cannot be arbitrarily exercised. Moreover high aspirations of the public/from the courts will sink to depths or despair if contrary decisions are given on identical facts. All judicial and quasi judicial authorities have not only to serve the public but also to create confidence in the minds of the public.

In case of Kashmira Singh Vs. Duman Singh, , the ground regarding suppression of facts by accused was, considered by the Hon''ble Apex Court, as still weaker. In the first place, knowledge of two bail applications of the co-accused having been rejected has been imputed to the accused without valid basis. Secondly, the fact that the co-accused had applied for bail and had later not pressed the application, had been disclosed since it was known to the accused. That was sufficient indication that the co-accused had not been enlarged on bail. His decision not to press for bail would be indicative of the fact that the Court was disinclined to grant bail or, he did not see sufficient grounds to press the bail application. Be that as it may, the fact remains that the Court was aware that the co-accused was not granted bail. That was sufficient for the Court when it considered the accused''s application for bail. Besides, it was the prosecution/complainant''s duty to bring to the Court''s notice that two applications of the co-accused for bail were rejected. If the accused did not mention it, nothing prevented the opposite side from placing it on record. It seems to be an omission on the part of the prosecution/complainant''s side but, for that it would be wrong to charge them with having suppressed facts. So also for the accused, more particularly because, there was no positive evidence to attribute knowledge to the accused. Hence, it cannot also be aground for cancellation of the bail granted to accused.

In a single Bench decision of this Court in case of Vishnu Ram Chandra Maheshwari v. State of M.P. reported in 1999 (1) MPJR 524 = 1999 (3) Crimes 219, where the fact of rejection of bail application of other accused was not brought to notice of the Court though counsel for both those two accused was same-for lapse on the part of the counsel, however it was observed that applicant could not be made to suffer.

In the same case it was further pointed out that the judicial propriety demands that Members of the Bar must bring to the notice of the Court all the facts correctly. They are part of the judicial system. The function of the Court as well as the Members of the Bar is to see that justice is impartially done. A member of the Bar is also an officer of the Court. Of course, it is true that heavy duty is cast upon the prosecution to place before the Court all the facts. It was the duty of the prosecuting counsel as well as the complainant to apprise the Court that the bail application of other co-accused has been rejected.

In a full bench decision of this court in case of Santosh Vs. State of M.P., ; it was settled that the posting of the subsequent bail applications before the same Bench which had earlier rejected an application, was never considered to be an imperative of law, but this requirement was recognized in view of the long standing convention and judicial discipline. The convention that subsequent bail application should be placed before the same judge who may have passed earlier orders has its roots in principle as it prevents abuse of process of court and obviates possibility of an impression that a litigant is shunning or selecting a court depending on whether the court is to his liking or not. It was further observed that if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and therefore judicial discipline required that such matters were placed before the same Judge.

Taking into consideration the implications arising under the various decisions referred hereinabove, we are of the considered opinion that although legally no duty is cast upon an accused to disclose the fact of the rejection of the earlier bail application of another co-accused person, however, if it is within the knowledge of a counsel it becomes his duty as a member of honourable profession and an officer of the Court to disclose all the necessary facts including the rejection of bail application of other co-accused person, in the interest of justice. In appropriate cases where it amounts to suppression of fact for obtaining a favourable order such non-disclosure may also result in a misconduct on the part of the counsel. True it is that no application can be rejected on the sole ground of non-disclosure of the rejection of any previous bail application of any co-accused person. However, a heavy duty is cast on the prosecution agency to disclose and to bring it in the specific knowledge of the Court that a bail application of another co-accused person had been rejected by the Court in order to avoid inconsistency of orders in a similarly placed-accused person in a crime.

We feel it our sincere duty to issue necessary directions for future guidence in order to avoid conflicting decisions particularly in such matters where the Court can not enter into details of evidence on merits. In a bail application claiming parity with other co-accused it would be necessary to mention if it is in the knowledge of a party or a counsel to bring to the knowledge of the Court any order of rejection of bail application of any co-accused person.

Similarly the presecution agency is duty bound to disclose the fact of rejection of previous application of any co-accused, when it has been noticed in advance regarding consideration of any bail application and to keep the record straight to avoid the likelihood of inconsistent orders in the bail matters the State shall after receiving the notice in respect of any application seeing suspension of sentence and release on bail endeavour to examine the case of all the co-accused persons in that criminal case and if it is detected that an application by a co-accused similarly situate has been rejected earlier it shall be promptly brought to the notice of the Bench hearing the said application.

For the aforesaid purpose, adequate steps shall be taken by the Advocate General/Additional Advocate General so that all the appeals arising out of the same Sessions Trial are kept together and a track is maintained in respect of all the applications seeking suspension of sentence and grant of release on bail by the co-accused persons and the orders passed disposing of that application shall be placed on record maintained by the Advocate General/Additional Advocate General for which purpose, if necessary, on their request the typed copies of such orders be supplied to them by the Registrar concerned.

The office is directed to formulate a device where from it can be gathered as to how many appeals have been filed against a particular judgment and also place a consolidated information before the Court with regard to the previously rejected applications arising out of the same judgment in a consolidated form when any application for grant of release on bail is moved.

With the directions indicated hereinabove, the applications M. (Cri.) P. 1125/01, M. (Cri.) P. No. 1126/01 filed by applicants Manoj and Kailash and M. (Cri.) P. No. 1052/01 filed by Gajraj Singh are allowed and it is further directed that the applicants be released on bail on their furnishing bail bonds in the sum of Rs. 50,000/- each with one solvent surety each of the like amount to the satisfaction of C.J.M. concerned to appear before the Registrar of this Court on 8th October 2001 and on such further dates as may be directed in that behalf.