2010 ALL MR (Cri) JOURNAL 17
(ALLAHABAD HIGH COURT)
VIJAY KUMAR VERMA, J.
Toran Yadav & Anr.Vs.State Of U.P.
Crl. M.B. Appln. No.7555 of 2009
26th August, 2009
Petitioner Counsel: AJAY KUMAR SRIVASTAVA
(A) Criminal P.C. (1973), S.439 - Grant of bail - On ground of parity - Not obligatory to grant bail to similarly placed co-accused without considering merits - No judge is obliged to pass orders against his conscience merely to maintain consistency. (Para 27)
(B) Criminal P.C. (1973), S.439 - Bail - Entitlement to - Murder case - Complicity of accused supported by prima facie evidence - Accused along with co-accused brutally gave blows on vital parts of the body of deceased - Accused having criminal history and offence committed while on bail - Long incarceration in jail even as under-trial prisoner cannot provide a basis for grant of bail in a heinous crime. 2009(2) ALL MR 413 (S.C.) - Rel. on. (Paras 37-39)
Sunder Lal Vs. State, 1983 Cr.L.J. 736 [Para PARA7,8]
Nanha Vs. State, 1993 Cr.L.J. 938 [Para PARA8]
Chander @ Chandra Vs. State of U.P., 1997(34) ACC 311 [Para PARA9]
Chander @ Chandra Vs. State of U.P., 1998 U.P. Cr.R. 26 [Para PARA9,10,27]
Chandigarh Administration Vs. Jagjit Singh, AIR 1995 SC 705 [Para PARA11]
Secretary Jaipur Development Authority Vs. Daulatmal Jain, 1997(1) SCC 35 [Para PARA12]
Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh, S.L.P. No.4059/2000, Dt.12.3.2001 [Para PARA13]
Salim Vs. State of U.P., 2003 ALL. L. J. 625 [Para PARA15]
Zubair Vs. State of U.P., 2005(52) ACC 205 [Para PARA16]
Satyendra Singh Vs. State of U.P., 1996 A. Cr. R.867 [Para PARA17]
Izrahul Haq Abdul Hamid Shaikh Vs. State of Gujarat, 2009 ALL SCR 1259 : 2009(3) JT 385 [Para PARA18]
Fida Hussain Bohra Vs. State of Maharashtra, 2009 ALL MR (Cri) 1229 (S.C.) =2009(2) JIC 312 (SC) [Para PARA 18]
Deepak Bajaj Vs. State of Maharashtra, 2009 ALL SCR 105 : AIR 2009 SC 628 [Para PARA18]
Quinn Vs. Leathem, 1901 AC 495 [Para PARA19]
Ambica Quarry Works Vs. State of Gujarat, (1987)1 SCC 213 [Para PARA20]
Bhavnagar University Vs. Palittana Sugar Mills Pvt. Ltd., (2003)2 SCC 111 [Para PARA21]
Bharat Petroleum Corporation Ltd. Vs. N. R. Vairamani, AIR 2004 SC 4778 [Para PARA22]
London Graving Dock Co. Ltd. Vs. Horton, 1951 AC 737 [Para PARA23]
Home Office Vs. Dorset Yacht Co., 1970(2) All ER 294 [Para PARA24]
(1971)1 WLR 1062 [Para PARA24]
Herrington Vs. British Railways Board, 1972(2) WLR 537 [Para PARA25]
Sarva Shramik Sanghatana (K.V.), Mumbai Vs. State of Maharashtra, 2008(2) ALL MR 314 (S.C.) =AIR 2008 SC 946 [Para PARA6]
Government of Karnataka Vs. Gowramma, 2008 ALL SCR 553 : AIR 2008 SC 863 [Para PARA26]
Pramod Kumar Saxena Vs. Union of India, 2009(2) ALL MR 413 (S.C.)=2008(63) ACC 115 [Para PARA38]
-"On granting bail by one Judge to any accused, is another Judge also under obligation to grant bail to the similarly placed co-accused on the basis of the principle of parity without considering the merit", is the main point that falls for consideration in this bail application under Section 439, Cr.P.C., in which prayer for bail has been made on behalf of the applicants Toran Yadav s/o. Puntey Yadav and Raghubeer Yadav s/o. Toran Yadav in Case Crime No.356 of 2008 under Sections 147, 148, 149, 302, 307, 379, 411, I.P.C. and 7, Criminal Law Amendment Act, P.S. Poora Kala, District Lalitpur.
2. An FIR was lodged by Smt. Bhoori Raja, wife of Mohan Singh on 24.7.2008 at P.S. Poora Kala, District-Lalitpur, where a case under Section 147, 148, 149, 302, 307, 379 I.P.C. and 7, Criminal Law Amendment Act was registered at Case Crime No.356 of 2008 against 1. Santosh 2. Bhan Singh 3. Kalyan Singh 4. Shankar Yadav 5. Ballu Yadav 6. Toran Yadav and 7. Raghuveer Yadav. The allegations made in the FIR, in brief, are that Raj Bhan Singh @ Badey Raja s/o the complainant Smt. Bhoori Raja had gone to Jhansi to meet his lawyer on 24.7.2008 and when after consulting his lawyer, he was coming back to his house on motorcycle and reached near Hanumanji Temple at about 3:50 p.m., the accused Santosh, Bhan Singh and Kalyan Singh came from behind on motorcycle and surrounded Raj Bhan Singh. At the same time, the accused Shankar Yadav, Ballu Yadav, Toran Yadav and Raghubeer Yadav having axes and rifle in their hands came from the side of village. The accused Santosh fired repeated shots from his revolver on Raj Bhan Singh, due to which he fell down. Shankar Yadav also fired on Raj Bhan Singh from rifle and other accused gave blows by axes. Due to the injuries sustained in the said incident, Raj Bhan Singh died on the spot. On hearing hue and cry, the complainant Smt. Bhoori Raja, her daughter-in-law and village people Rajju, Mulayam Singh and Godan Singh rushed towards the place of incident. When daughter-in-law of the complainant and wife of deceased Raj Bhan Singh fell down on his dead body, the accused Santosh Singh fired on her, due to which she sustained injuries. It is further alleged in the FIR that while fleeing away from the place of incident, the accused Shankar Yadav carried the motorcycle of the deceased.
4. The first and foremost submission made by learned counsel for the applicants was that co-accused Ballu Yadav, who was also armed with axe as per FIR and statements of the witnesses, has been granted bail by another Bench of this Court vide order dated 17.3.2009 passed in Criminal Misc. Bail Application No.4230 of 2009 and hence, on the basis of the principle of parity, the applicants are entitled to be released on bail, as these applicants also are alleged to be armed with axes. The contention of the learned counsel was that since the similarly placed co-accused Ballu Yadav has been released on bail on merit by another Bench of this Court, hence this Bench also is bound to grant bail to the applicants on the basis of the principle of parity.
5. On the matter of granting bail on the basis of the principle of parity, it was submitted by learned AGA that parity is not the sole ground for bail and this Bench is not bound to release the applicants on bail on the basis of the order dated 17.3.2009 passed by another Bench of this Court in Criminal Misc. Bail Application No.4230 of 2009, whereby bail to the co-accused Shanker Yadav and Ballu Yadav has been granted.
6. Having given my thoughtful consideration to the matter of granting bail on the basis of the principle of parity, I entirely agree with the submission of learned AGA that parity cannot be the sole ground for bail.
7. 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. State, 1983 Cr.L.J. 736 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...."
8. This question was again examined by the Division Bench of this Court in Nanha Vs. State, 1993 Cr.L.J. 938, 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 round for granting bail to a co-accused."
9. 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 Vs. 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 Vs. State of U.P. (1998 U.P. Cr.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."
10. It is further held by the Division Bench in Chander @ Chandra Vs. State of U.P. (1998 U.P. Cr.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."
11. 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 Vs. Jagjit Singh, AIR 1995 SC 705, 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."
"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."
13. In Special Leave Petition No.4059 of 2000 : Rakesh Kumar Pandey Vs. Munni Singh @ 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 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."
"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."
16. Again in the case of Zubair Vs. 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.
17. The matter of granting bail on the principle of parity was considered by this Court in Satyendra Singh Vs. State of U.P., 1996 A.Cr.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 Vs. State (Delhi Administration), AIR 1978 SC 179."
18. Although the Hon'ble Apex Court has granted bail making reference of the principle of parity in Izrahul Haq Abdul Hamid Shaikh and Anr. Vs. State of Gujarat, 2009(3) JT 385 : [2009 ALL SCR 1259] and in Fida Hussain Bohra Vs. State of Maharashtra, 2009(2) JIC 312 (SC) : [2009 ALL MR (Cri) 1229 (S.C.)], 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 judgment of a 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. The Hon'ble Apex Court has held in Deepak Bajaj Vs. State of Maharashtra & another, AIR 2009 SC 628 : [2009 ALL SCR 105] 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.
"Now before discussing the case of Allen Vs. 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".
"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."
"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".
22. As held in Bharat Petroleum Corporation Ltd. & another Vs. N. R. Vairamani & another (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". (Emphasis supplied)
"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".
24. In Home Office Vs. 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".
"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". (Emphasis supplied)
26. The same view was taken by the Hon'ble Apex Court in Sarva Shramik Sanghatana (K.V.), Mumbai Vs. State of Maharashtra & Ors., AIR 2008 SC 946 : [2008(2) ALL MR 314 (S.C.)] and in Government of Karnataka & Ors. Vs. Gowramma & Ors., AIR 2008 SC 863 : [2008 ALL SCR 553].
27. 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 Vs. 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 accused 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 applicants cannot be released on bail and the bail application of the applicants has to be considered on merit.
28. On merit, it was submitted by learned counsel for the applicants that the deceased had died due to the injuries caused by fire arms and hence, on this ground, the applicants are entitled to be released on bail, because injuries by fire arms are alleged to have been caused by co-accused Santosh Singh and Shankar Yadav, whereas the applicants are alleged to have caused injuries by axes. It was also submitted in this context that injuries caused by axes were not fatal to the deceased, as no vital organ of the body was damaged by the injuries alleged to have been caused by axes.
29. It was also submitted by learned counsel for the applicants that ante mortem injuries nos.3, 4 and 5, which are incised wounds, are not possible to be caused by axes, because these injuries were only bone deep.
30. Next submission made by learned counsel for the applicants was that in addition to incised wounds and fire arm injuries, lacerated wounds (ante mortem injuries nos.1, 2 and 14) were also found on the person of deceased at the time of post-mortem examination, as is evident from the post-mortem report (Annexure-2) and since these lacerated wounds cannot be caused by axes, hence the case of prosecution becomes doubtful, because explanation of these lacerated wounds has not been furnished by the prosecution.
31. Regarding the injuries of injured Smt. Basant Raja, wife of the deceased Raj Bhan, it was submitted by learned counsel for the applicants that she did not sustain any injury caused by fire arm and hence on this ground, her presence on the spot becomes doubtful.
32. It was further submitted by learned counsel that there was no occasion for the witnesses to see the incident of causing injuries to the deceased, as the witnesses are said to have reached on the place of incident on hearing hue and cry and hence, statements of the alleged witnesses do not carry any weight.
33. It was also submitted by learned counsel that the applicants are languishing in jail since 1.8.2008 and hence on the basis of long detention period in jail, they are entitled to be released on bail because due to delay in trial, their fundamental right of speedy trial, envisaged under Article 21 of the Constitution is being violated.
34. The bail application was vehemently opposed by learned AGA contending that specific role of causing injuries to the deceased by means of axes has been attributed to both the applicants and hence in this heinous crime of day light murder, the applicants should not be released on bail.
35. About the ante mortem lacerated wounds shown in the post-mortem report, it was submitted by learned AGA that these injuries can be caused by giving blows from blunt side of axes and as such there is no material inconsistency in FIR and medical evidence.
36. It was also submitted by learned AGA that the injured Basant Raja had sustained fire arm injuries, as is evident from her injury report (Annexure-3) and hence her presence on the spot can not be doubted.
37. I have carefully gone through the entire case diary and material on record. There is sufficient prima facie evidence to show the complicity of the applicants in the incident of committing murder of Raj Bhan Singh. Both the applicants are said to be armed with axes. Specific role of causing injuries to the deceased by the applicants by means of axes has been assigned in the FIR and statement of witnesses. Serious ante mortem injuries, which can be caused by giving blows by axes, were found on vital parts of the body of deceased at the time of post-mortem examination, as is evident from post-mortem report (annexure-2). From paras 20 and 21 of the bail application, it is revealed that both the applicants have criminal history and being on bail, they again participated in the incident of committing murder. Therefore, having regard to all these facts and keeping in view the specific role assigned to the applicants for causing injuries to the deceased by axes, but without expressing any opinion about merit of the case, both the applicants in this heinous crime of day light murder do not deserve bail.
38. 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 Vs. Union of India and others, 2008(63) ACC 115 : [2009(2) ALL MR 413 (S.C.)], 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.
40. The trial court concerned is directed to conclude the trial of the applicants and other accused persons within a period of six months making sincere, and avoiding unnecessary adjournments and applying the provisions of Section 309 of the Code of Criminal Procedure.
41. SSP Lalitpur also is directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the court concerned and it must be ensured that witnesses are produced in the sessions trial arising out of Case Crime No.356 of 2008 of P.S. Poora Kala, District-Lalitpur.