AFR

Reserve

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28882 of 2008

Petitioner :- Amarnath Yadav

Respondent :- State Of U.P.

Petitioner Counsel :- Kamal Krishna

Respondent Counsel :- Govt. Advocate

********************

Hon'ble Vijay Kumar Verma, J.

By means of this application under Section 439 of the Code

of Criminal Procedure (in short 'the Cr.P.C.'), prayer for bail has

been made on behalf of the applicant Amar Nath Yadav s/o Sukhu

Yadav, who is facing trial in S.T. No. 143 of 2008 (State vs. Amar

Nath Yadav & others) arising out of Case Crime No. 60 of 2008

under Sections 302, 307, 506 I.P.C., P.S. Chunar, District Mirzapur.

2. An FIR was lodged by the complainant Vijay Kumar

Yadav on 31.01.2008 at 8.20 p.m. at P.S. Kotwali Chunar

(Mirzapur) at case crime No. 60 of 2008 with the allegations that on

30.01.2008 at about 08.30 p.m., the accused Amar Nath Yadav

(applicant herein), Gulab Yadav and Pyare Lal Yadav, all sons of

Sukhoo Yadav, r/o Saraiya Sikandarpur, P.S. Chunar and one

unknown person fired on Jawahar Yadav (father of the

complainant), thereby causing injuries to him. Further case of the

prosecution is that as a result of the injuries sustained by Jawahar

Yadav in the said incident, he died in the hospital during treatment

on 03.03.2008.

3.I have heard arguments at length of Sri P.K. Singh,

NeutralJCitationJNo.J-J2009:AHC:35047

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Advocate, appearing for the applicant and AGA for the State.

4.The first and foremost submission made by learned

counsel for the applicant was that in the FIR as well as in the

statement of the complainant Vijay Kumar recorded in S.T. No.

143 of 2008, general allegations of firing was assigned to all the

accused persons named in the FIR and since the co-accused

Pyare Lal has been granted bail by another Bench of this Court

vide order dated 01.05.2008 passed in Crl. Misc. Bail Application

No. 11984 of 2008, hence the applicant is also entitled to be

released on bail on the basis of the principle of parity.

5.On merit, it was submitted by learned counsel for the

applicant that although, specific role of firing on the deceased

was assigned to the applicant Amar Nath Yadav in the statement

of the complainant Vijay Kumar Yadav recorded under section

161 Cr.P.C., but neither in the FIR, nor in the statement of the

complainant recorded in S.T. No. 143 of 2008, no specific role

has been assigned to the applicant and hence on this ground he

deserves bail, because it can not be said that the applicant was

the author of fatal injuries sustained by the deceased. For this

submission, my attention was drawn towards the statement

(annexure SA-1 to the 2

nd

supplementary affidavit) of the

complainant Vijay Kumar recorded as P.W.1 in S.T. No. 143 of

2008. It was also submitted by learned counsel in this context

that according to the injury report (annexure-3), the deceased

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had sustained two injuries caused by firearms, but neither in the

FIR, nor in the statement of the complainant recorded in S.T. No.

143 of 2008, it is stated that the shot fired by applicant had hit the

deceased and hence on granting bail to the identically placed co-

accused Pyare Lal, the applicant also should be released on bail.

6.Further submission made by learned counsel was that

the incident of causing injuries to the deceased is said to have

occurred on 30.01.2008 at about 8.30 p.m., but the FIR was

lodged after about 24 hours, which is fatal to the prosecution

case, because no satisfactory explanation has been furnished by

the prosecution for the delay in lodging the FIR.

7.It was also submitted by learned counsel that the

applicant had attended the court of Additional Sessions Judge

Fast Track Court -II Mirzapur on 31.01.2008 in S.T. No. 69 of

1998 (State vs. Sukhoo and others) and on this ground also, the

applicant deserves bail, because after causing injuries to the

deceased in the intervening night of 30/31.01.2008, the applicant

in ordinary course would have absconded and he would not have

attended the court on 31.01.2008. For this submission, my

attention was drawn towards copy of the order-sheet of S.T. No.

69 of 1998 (annexure-6), which bears the thumb impression of

Amar Nath Yadav (applicant) showing his presence in court on

31.01.2008.

8.Next submission made by learned counsel for the

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applicant was that although the deceased had died after more

than one month from the date of incident, but neither any dying

declaration nor his statement was recorded under section 161

Cr.P.C., which shows that the deceased had not recognized the

assailants and it was for this reason that his statement was not

recorded.

9.It was further submitted by learned counsel for the

applicant that the deceased in injured condition was carried to the

hospital by Chhotey Lal and not by the complainant Vijay Kumar,

which shows that the complainant was not present at the time of

alleged incident and it was for this reason that his father Jawahar

Lal in injured condition was carried to hospital by Chhotey Lal. In

support of this submission, my attention was drawn towards the

injury report (annexure-3) of Heritage Hospital, Varanasi, in which

it is mentioned that the injured Jawahar Yadav was brought to

hospital by Chhotey Lal Yadav, who has been shown as his

brother.

10. Next submission made by learned counsel was that

the motive as alleged in the FIR is very weak. It was also

submitted in this context that statement of the deceased had

already been recorded in the session trial, which was pending

between the parties and hence there was no occasion for the

applicant and other accused to commit his murder. It was further

submitted in this very context that the accused persons have

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been acquitted in S.T. No. 69 of 1998, vide judgment dated

05.12.2008 and on this ground, the alleged motive is falsified. For

this submission, my attention was drawn towards the copy of the

judgment dated 05.12.2008 of S.T.No. 69 of 1998 (State vs.

Sukhoo & others), which has been filed with supplementary

affidavit dated 20.12.2008.

11. It was also submitted by the learned counsel that the

applicant languishing is in jail since 15.02.2008, and hence on the

basis of long detention period in jail, he is entitled for bail, as due to

delay in trial his fundamental right of speedy trial envisaged under

Article 21 of the Constitution of India is being violated.

12. The bail application was vehemently opposed by learned

AGA contending that the role of firing has been assigned to the

applicant and other accused persons named in the FIR and since the

deceased had died as a result of injuries caused by firearm in the

alleged incident, hence in this heinous crime, the applicant should

not be released on bail.

13. It was further submitted by learned AGA that litigation

between the parties was going on prior to the incident and hence

there was strong motive for the applicant and his brothers to

eliminate the deceased.

14. Regarding delay in lodging the FIR, it was submitted by

learned AGA that the deceased had sustained very serious injuries

and since he was carried to Haritage Hospital Varanasi for better

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treatment, where he was admitted, hence the delay in lodging the

FIR would not be fatal, because the complainant remained busy after

the incident in getting his father admitted in the hospital. About

mentioning the name of Chhotey Lal Yadav in the injury report

(annexure-3), it was submitted by learned AGA that after the incident

some persons had arrived at the place of incident, who helped the

complainant in carrying the deceased in injured condition to the

hospital and if the name of Chhotey Lal Yadav (brother of deceased)

has been noted in the injury report as the person, who carried the

injured Jawahar Yadav to Haritage Hospital, it cannot be said on this

ground that the complainant was not present at the time of incident. It

was also submitted by learned AGA that the statement of the

complainant has been recorded in trial court in S.T.No. 143 of 2008,

in which he has fully supported the case of prosecution and his

presence at the time of incident is fully established on the basis of his

statement recorded on oath in trial court.

15. Regarding the thumb impression of the applicant Amar

Nath Yadav on the order sheet dated 31.01.2008 of S.T. No. 69 of

1998 and his alleged presence in the court of Additional Session

Judge/ FTC-II Mirzapur on that date, it was submitted by learned

AGA that merely on this ground, the presence of applicant at the

place of incident cannot be doubted, because his complicity in the

incident has been fully established on the basis of the statement of

complainant recorded in trial court as P.W.1 in S.T.No. 143 of 2008.

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16. On the point of granting bail to the applicant on the

basis of the principle of parity, it was vehemently contended by

learned AGA that parity cannot be the sole ground for bail and

hence this Bench is not bound to admit the applicant to bail on

the basis of the order dated 01.05.2008 passed by another

Bench of this Court on the bail application of co-accused Pyare

Lal in Crl. Misc. Bail Application No. 11984 of 2008, whereby he

(co-accused Pyare Lal) has been released on bail.

17. Having given my thoughtful consideration to the

submissions made by learned counsel for the parties. I entirely

agree with the contention of learned AGA that parity cannot be the

sole ground for bail.

18.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

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sufficient for admitting the applicant to bail

who is involved in a triple murder case....”

19.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.”

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20. Hon'ble Virendra Saran, J. held as follows in para

61 of the reports:

21. ...........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).....”

22. 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.”

23. 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

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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.”

24. 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.”

25. 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:

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“....... 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.”

26. Again in Secretary Jaipur Development Authority V.

Daulatmal Jain, 1997(1) SCC 35, 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

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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.”

27. 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.”

28. The Apex Court in the aforesaid law report has further

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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 judgement 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.“

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29. In the case of Salim Vs. State of U.P. 2003 ALL. L.

J. 625, this Court has held that parity can not be the sole ground for

bail.

30. 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.

31. 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.

32. Although the Hon'ble Apex Court has granted bail

15

making reference of the principle of parity in Izrahul Haq Abdul

Hamid Shaikh and Anr. Vs. State of Gujarat 2009 (3) JT 385

and in Fida Hussain Bohra Vs. State of Maharashtra 2009 (2)

JIC 312 (SC), 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

judgement of a Court is only an authority for what it actually decides

and not what logically follows from it and judgement 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 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.

33. On the subject of precedents, Lord Halsbury, L.C. said

in Quinn vs. Leathern, 1901 AC 495:-

16

“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”.

34. In Ambica Quarry Works vs. State of Gujarat &

others (1987) 1 SCC 213 (vide paragraph 18) the Hon'ble Apex

Court observed:-

“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.”

35. In Bhavnagar University vs. Palittana Sugar Mills

Pvt. Ltd. (2003) 2 SCC 111 (vide paragraph 59, the Hon'ble Apex

Court observed:-

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“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”.

36. As held in Bharat Petrolieum 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)

37. In London Graving Dock Co. Ltd. vs. Horton (1951

AC 737 at page 761), Lord Mac Dermot observed:-

“The matter cannot, of course, be settled

merely by treating the ipsissima verba of Willes,

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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”.

38. 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”.

39. In Herringion vs. British Railways Board (1972 (2)

WLR 537) Lord Morris said:

“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

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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)

40. 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 and in Government of

Karnataka & Ors. Vs. Gowramma & Ors. AIR 2008 SC 863.

41. In view of the observations made in aforesaid

decisions, I am of the considered opinion that on granting bail by

one bench to any accused, another bench 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

20

maintain consistency. Therefore, in present case also, merely on

the basis of the principle of parity, the applicant cannot be released

on bail and bail application of the applicant has to be considered on

merit.

42. The applicant is named in the FIR and role of firing

has been assigned to him also along with other accused persons.

Although specific role of firing on the deceased was attributed to the

applicant Amar Nath in the statement of the complainant Vijay

Kumar Yadav recorded under section 161 Cr.PC., but even keeping

in view the general role of firing assigned to all the accused persons

in the FIR and statement of the complainant Vijay Kumar recorded

in trial court in S.T. No. 143 of 2008 and having regard to the

aforesaid submissions made by learned counsel for the parties, but

without expressing any opinion about merit of the case, in this

heinous crime of taking away the life of an innocent person

without any lawful excuse, the applicant does not deserve bail.

43. In my considered opinion, on the basis of the long

incarceration in jail also, the applicant can not 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, 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

21

not be violative of Article 21 of the Constitution.

44. Consequently, the bail application is hereby rejected.

45. The trial court concerned is directed to conclude the

trial of the applicant and other accused persons within a period of

six months avoiding unnecessary adjournments and applying the

provisions of Section 309 Cr.P.C.

46. SSP Mirzapur also is directed to depute special

messenger to procure the attendance of rest witnesses after

obtaining their summons from the court concerned and it must be

ensured that all the rest witnesses are produced in sessions trial

No. 143 of 2008 without causing any delay.

47. Sessions Judge Mirzapur will also ensure that trial of

the accused persons is concluded within aforesaid period.

48. The office is directed to send a copy of this order within

a week to the trial court concerned, Sessions Judge and SSP

Mirzapur for necessary action.

vk. updh.

Dtd: 13

th

October, 2009.

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