Shahnawaz alias Shanu vs State of U.P.

Vijay Kumar Verma, J.—Whether the principle of parity can be the sole ground for granting bail?, is the main point that falls for consideration in both these bail applications.

Prayer for bail in Bail Application No. 6248 of 2009, has been made in Crime No. 1234 of 2008 under Sections 489B and 489C, I.P.C., P. S. Kotwali, district Rampur on behalf of the applicant-accused Shahnawaz alias Shanu, whereas in Bail Application No. 34861 of 2008, prayer for bail has been made in Crime No. 322 of 2008 under Sections 489B, 489C and 489E, I.P.C., P. S. Chetganj, district Varanasi on behalf of the applicant-accused Ravi Prasad Verma.

Although both these bail applications pertain to different crime numbers of different police stations, but since common question of law is involved in both these applications, hence for the sake of convenience, both the applications are being disposed of by this common order.

Heard arguments at length of Sri Rajesh Kumar Gupta, advocate appearing for the applicant Shahnawaz alias Shanu, Sri A. K. Srivastava and Sri A. P. Mishra, advocates appearing for the applicant Ravi Prasad Verma and A.G.A. for the State.

An F.I.R. was lodged on 29.8.2009 at P. S. Kotwali, Rampur by Inspector Singh, S.H.O., P. S. Kotwali, Rampur, where a case under Sections 489B and 489C, I.P.C. was registered against Munna Kumar Gupta and Shahnawaz alias Shanu (applicant herein) at Crime No. 1234/2008. The allegations made in the F.I.R., in brief, are that on getting information from informer that three persons are transacting counterfeit currency notes in the market, Inspector Singh, S.H.O., P.S. Kotwali, Rampur with the help of other police personnel apprehended the applicant Shahnawaz alias Shanu and co-accused Munna Kumar Gupta on 29.8.2008 at about 5.00 p.m. at Quila Parisar near Janjeer Shah Baba Ki Mazar, Rampur. On personal search of the applicant Shahnawaz, two hundred counterfeit currency notes of Rs. 500 (total amount Rs. 1,00,000) are said to have been recovered. On the search of co-accused Munna Kumar Gupta also two hundred counterfeit currency notes of Rs. 500 are alleged to have been recovered. One person is said to have fled away after handing over bundles of currency notes to one of these accused.

On 15.8.2008, an F.I.R. was lodged by S. I. Mahesh Kumar Bhole at P. S. Chetganj, Varanasi, where a case under Sections 489B, 489C and 489E, I.P.C. was registered at Crime No. 322 of 2008 against Suresh Prasad Verma, Ravi Prasad Verma (applicant herein) and Smt. Laxmi Devi W/o Suresh Prasad Verma. The allegations made in that F.I.R., in brief, are that on getting information through the informer, S.I. Mahesh Kumar Bhole with the help of other police personnel apprehended the accused Suresh Prasad Verma, Ravi Prasad Verma and Smt. Laxmi Devi on 15.11.2008 at about 5.30 p.m. in mohalla Pishach Mochan, district Varanasi. On personal search of the accused-applicant Ravi Prasad Verma, fourteen counterfeit currency notes of Rs. 1,000 (total amount Rs. 14,000) are said to have been recovered, whereas from the search of co-accused Suresh Prasad Verma, fifty counterfeit currency notes of Rs. 1,000 and from his wife Smt. Laxmi Devi, ten counterfeit currency notes of Rs. 1,000 are alleged to have been recovered.

Before passing order on the merit of the bail applications, I would like to express my views on the legal question, which I have posed for consideration as stated hereinabove. This question has been posed for consideration, because during the course of hearing on the bail applications, it is being argued by Hon''ble members of the Bar that Court is bound to grant bail to the accused, if similarly placed accused having same role has been granted bail by another Bench. The Hon''ble members of the Bar generally contended that principle of parity is the sole ground for bail. In both these bail applications also in addition to the arguments made on merit, it was contended by the learned Counsel for the applicants that on the ground of parity, the applicants are entitled for bail. Hence, necessity to consider the aforesaid legal question has arisen.

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. XXXIV (1997) ACC 311: 1997 ACR 6. 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 CR 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 CR 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.

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 para 17 in the case of Chander alias Chandra v. State of U. P. 1998 UP CR 263: 1997 ACR 6, it was held that:

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 SLP No. 4059 of 2000, Rakesh Kumar Pandey v. Munni Singh alias 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.

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 hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail.

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 any 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 Eulid''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 Anr. 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 Ors. AIR 2008 SC 863: 2008 (1) AWC 883 (SC).

In view of the aforesaid discussion, I am of the considered opinion that parity cannot be the sole ground for granting bail.

Now I come to the merit of the bail applications. The main contention raised in both these bail applications by the learned Counsel for the applicants was that even if the entire version of the F.I.R. is accepted to be true, the offence would not travel beyond Section 489C, I.P.C., which is bailable and hence, the applicants as of right are entitled to be released on bail. The contention of the learned Counsel was that possession of counterfeit currency notes is punishable u/s 489C, I.P.C. only and in such case, the offence punishable u/s 489B, I.P.C. would not be made out.

It was also submitted by the learned Counsel for the applicants that after planting counterfeit currency notes, the applicants have been falsely implicated in these cases and no recovery of any currency note was made from them.

Drawing my attention towards the order dated 30.4.2009, passed by another Bench of this Court in Bail Application No. 11051 of 2009, granting bail to the co-accused Munna Kumar Gupta in Case Crime No. 1234 of 2008 of P. S. Kotwali, Rampur, it was contended by the learned Counsel for the applicant Shahnawaz alias Shanu that on the ground of parity, the applicant is entitled for bail, because in the same incident, two hundred counterfeit currency notes of Rs. 500 were shown to have been recovered from the co-accused Munna Kumar Gupta, who has been admitted to bail and since similar allegation has been made against the applicant Shahnawaz alias Shanu, hence he also deserves bail on the ground of principle of parity.

The learned Counsel for the applicant Ravi Prasad Verma also submitted that the co-accused Smt. Laxmi Devi has been granted bail, hence on the ground of parity, the applicant Ravi Prasad Verma is also entitled to be released on bail.

It was also submitted by the learned Counsel for the applicants that on the basis of long incarceration in jail also, the applicants are entitled to be released on bail, because due to delay in trial their Fundamental Right of speedy trial envisaged under Article 21 to the Constitution is being infringed.

Both the bail applicants were opposed by learned A.G.A. contending that the offences punishable under Sections 489A and 489B, I.P.C. are also made out in these cases in addition to the offence u/s 489C, I.P.C. and hence, in this heinous anti-social crime, the applicants should not be admitted to bail notwithstanding that the co-accused have been granted bail by another Bench of this Court.

The contention of the learned A.G.A. was that the accused persons have received counterfeit currency notes from some other person knowing or having reason to believe the same to be counterfeit and hence, the offence punishable u/s 489B, I.P.C. is clearly made out.

It was also submitted by learned A.G.A. in this context that the applicants have not furnished any explanation about keeping counterfeit currency notes with them and since in the accompanying affidavits it is not stated that the currency notes were lying somewhere, which were picked up by the accused persons, hence it would be presumed that the accused persons have received seized currency notes from any other person knowing or having reason to believe the same to be counterfeit.

It was further submitted by learned A.G.A. that if any person receives from any other person counterfeit currency notes or bank note knowing or having reason to believe the same to be forged or counterfeit, then he shall be punished u/s 489B, I.P.C. and if the said bank notes or currency notes are intended to be used as genuine, then in such case the offence punishable u/s 489C, I.P.C. also is made out.

Next submission made by learned A.G.A. was that there is sufficient prima facie evidence to show that the applicants-accused were having in their possession currency notes intending to use the same as genuine and hence the applicants-accused are liable to be punished under Sections 489B and 489C, I.P.C., because they received from any other person currency notes knowing or having reason to believe the same to be counterfeit with the intention to use the same as genuine.

It was also submitted by learned A.G.A. that although Section 114(a) of Indian Evidence Act, in terms is not applicable in present case, but on the basis of the analogy of this section, it shall be presumed that either the applicants are counterfeiters of seized currency notes, or they have received these currency notes knowing or having reason to believe the same to be counterfeit and since the applicants have not accounted for possession of these currency notes, hence, in addition to the offences punishable under Sections 489B and 489C, I.P.C., the offence punishable u/s 489A, I.P.C. also is made out in these cases.

So far as the matter of granting bail to the applicants-accused on the ground of parity is concerned, I have already held that parity cannot be the sole ground for bail. Therefore, in my considered opinion, the applicants in both these cases cannot be admitted to bail on the ground of parity.

Two hundred counterfeit currency notes of Rs. 500 from the applicants Shahnawaz alias Shanu and fourteen counterfeit currency notes of Rs. 1,000 from the applicant Ravi Prasad Verma are shown to have been recovered, for which there is sufficient prima facie evidence against them. Both the applicants have not furnished any explanation as to how they came into possession of such seized counterfeit currency notes. It is not the case of the applicants that currency notes, which are said to have been recovered from them, are genuine. It is also not the case of the applicants that currency notes were lying at any place, which were picked up by them. The applicant Shahnawaz alias Shanu is original resident of district Nainital (Uttrakhand), whereas the applicant Ravi Prasad Verma is the resident of district Dhanbad (Jharkhand). They are alleged to have been arrested by the police on the information that they were intending to use the counterfeit currency notes as genuine. Therefore, having regard to all these facts and aforesaid submissions made by the learned A.G.A., but without expressing any opinion about these submissions as well as merit of the case, both the applicants in this heinous anti-social crime do not deserve bail and granting bail in such crime would be a fraud on the society, as ultimately the people of society are adversely affected by such crime.

In my considered opinion, on the basis of the long incarceration in jail also, the applicant cannot be admitted to bail in this heinous anti-social crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. LXIII (2008) ACC 115: 2008 (3) ACR 3216 (SC), 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 applications of the applicants Shahnawaz alias Shanu and Ravi Prasad Verma are hereby rejected.

The trial courts are directed to conclude the trial of the applicants within a period of six months applying the provisions of Section 309, Cr. P.C. and avoiding unnecessary adjournments. If the accused who have been bailed out remain absent, or their counsel do not co-operate, then their trial may be separated and by making sincere efforts the trial of the applicants will be concluded within aforesaid period.

This order will form part of Criminal Misc. Bail Application No. 6248 of 2009 and copy thereof will be kept in Criminal Misc. Bail Application No. 34861 of 2008.

The office is directed to send a copy of this order within a week to both the trial courts concerned for necessary action.