Mohd. Aslam @ Munney vs State of U.P.

K. K. Chaubey, J.

Mohammad Aslam alias Munneyson of Lal Mohammad resident of Bastikapura, Jungideeh, P.S. Bhariya, District Allahabad has moved this third bail application. The first bail application of the applicant was rejected by this Court on merits on 14121989. The second Bail application was also rejected after hearing learned counsel for the parties on 2151990. This third bail application has been moved on the ground of Parity and secondly on some grounds touching the merits of the case, which were said to be new grounds. It appears that on 581989 the occurrence took place at about 4.00 p.m. when the applicants and some others are said to have fired at the deceased Saghir Ahmad, who fell down and expired.

Learned Counsel for the applicant argued that the first bail application of the coaccused Ansar Ahmad was rejected by Hon''ble B. L. Yadav, J. on 2731990 on the ground that the bail application of Mohd. Aslam alias Munney was rejected by me and that the case against the present applicant and Ansar Ahmad was.almost similar. However, the second bail application of Ansar Ahmad was allowed by Hon''ble B.K. Yadav, J. on 2351990 on the ground that some new points had been argued. It was, therefore, contended that on the ground of parity of the order of the second bail application of Ansar Ahmad, the present application oe allowed. It was further contended that other coaccused have already been admitted to bail and for this reason also the applicant should be admitted to bail. In support of this contention learned Counsel for the applicant placed reliance on the following rulings:

In this case it was held that on the ground of consistency the applicants should also be convicted under Section 326, I.P.C read with Section 34, I.P.C. instead of Section 302 read with Section 34, I.P.C. as the other accused has been convicted and sentenced.

Sanwal Das Gupta v. State of U. P & Anr. 1986 (23) ACC 79.

In this case it was held that if the Sessions Court granted bail to some accused, on the ground of parity, the Magistrate could grant bail to other accused.

Ram Roop @ Bhim Sen v. State of U. P,. 1987 UP A Cr R 30

In this case the coaccused had been released on bail and on this ground the second bail application of another accused was allowed.

I have carefully gone through these rulings and feel that on facts of the instant case, none of these rulings are applicable. Even in Ashok Kumar''s case, the Supreme Court has not said that the rule of parity or consistency should be taken as obligatory and must be followed in all cases. Against the above rulings, reference may be above rulings, reference may be made to Said Khan & Ors. v. State of UP., 1990 A Cr. R 54 in which reliance was placed in a ruling of this Court in Sita''Ram v. State, 1981 (18) ACC 182. In this case it was held:

"This claims of the principle of consistency and demand for parity by the accused, however, are noi compelling ones and cannot override the Judge contrary view in the case before him if even the awareness of the desirability of consistency fails to move him to modify his views. In other words this is only a factor to be considered and not a governing consideration. This is clear from the Supreme Court decision in Ashok Kumar''s case (supra) also where the Court declined to follow the principle in the matter of sentence."

We have noted that it is a case of broad day light murder in which bail was earlier refused twice after taking into consideration all the aspects of the case. Simply because some other Hon''ble Judge has allowed bail application of the coaccused, I am not inclined to change or modify the view taken by me. The first contention of the learned Counsel for the applicant, therefore, fails.

The second contention relates to the merits of the case. It was argued that as Hon''ble B.L.Yadav, J. had rejected the first bail application on the ground of parity of the first bail order on applicant''s application but allowed the second bail application of the coaccused on fresh ground, this parity should also be observed by me.

I have gone through the order of Hon''ble B.L. Yadav, J. There is no indication in that order as to what were the new grounds on which brother Yadav, J. granted the second bail application of the coaccused.

To be specific on the point learned Counsel for the applicant argued that injuries of the deceased are not compatible to the arms used. From paragraph 5 of the affidavit annexed with the second bail application read with other paragraphs it is clear that this point had been taken in the second bail application also. Similarly, the next argument in the third bail application regarding improbability of the applicant having reached on the bicycle at the place of occurrence, whereas other had come on a motor cycle had also been taken in the second bail application. It is not possible to reagitate the same facts again and again. Moreover, on these contentions any expression of opinion at his stage is bound to make prejudging of the case, which is not at all desirable.

The argument regarding first information report being ante time can also not be considered at this stage specially when there is nothing to showprima facie that it could be ante timed.

It was further contended that the applicant is in jail for a long time and there is no progress in the Sessions trial. This contention could only be considered after going through the order sheet of the Session''s case from which it could be shown that the applicant is not responsible for the delay in disposal of the case. A copy of the ordersheet of the Court below has not been produced and in the absence thereof it is not possible to consider this contention and give the benefits of delay in the trial to the applicant.

With these observations, this third bail application is rejected. Bail rejected.