AFR

Reserve

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4787 of 2009

Petitioner :- Nahar Singh

Respondent :- State Of U.P.

Petitioner Counsel :- Arvind Singh,Kamal Mishra

Respondent Counsel :- Govt. Advocate,Rajul Bhargava

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

Hon'ble Vijay Kumar Verma, J.

“Whether on granting bail by one bench to any accused,

another bench also is 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 the Code of Criminal

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

made on behalf of the applicant Nahar Singh s/o Padam Singh,

who is facing trial in S.T. No. 623 of 2007 (State vs. Nahar Singh &

others) arising out of Case Crime No. 519 of 2007 under Sections

147, 148, 149, 302, 307, 452, 504, 506/34 I.P.C., P.S. Goverdhan,

District Mathura.

2. An FIR was lodged by Smt. Maya, wife of deceased

Satyapal Singh, on 04.08.2007 at P.S. Goverdhan, District Mathura,

impleading Nahar Singh (applicant herein), Mahak Singh, Charan

Singh, Bhishma, Sundar, Veer Singh, Karan Singh, Narayan, Ajab

Singh, Kavita and Premwati as accused. The allegations made in

the FIR, in brief, are that when on 04.08.2007 at about 10.30 a.m.,

NeutralJCitationJNo.J-J2009:AHC:27550

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Satyapal Singh (husband of the complainant), Smt. Gora (daughter-

in-law of the complainant), and Kumari Kavita daughter of Vijay,

were coming on the tractor carrying the grass, the accused Nahar

Singh armed with country made pistol, Mahak Singh having axe,

Charan Singh and Sundar armed with country made pistols,

Bhisam having peti of cartridges, Veer Singh armed with gun,

Karan Singh having danda, Narayan having farsa, Ajab Singh

having saria, Babita having lathi and Smt. Premwati having danda

surrounded the tractor, and Nahar Singh fired from country made

pistol, which hit Satya Pal Singh (husband of complainant). Other

accused having firearms also fired on the husband of complainant.

On hearing hue and cry, the complainant Maya, her Devar Vinay

and Devarani reached on the place of incident, on which the

accused Nahar Singh and Sundar fired from country made pistols

on Vinay. Due to the injuries sustained by Satyapal and Vinay, they

both died instantaneously. Smt. Sukhdeyee (wife of deceased

Vinay) and complainant Smt. Maya also sustained injuries.

3.I have heard arguments at length of Sri G.S. Chaturvedi,

learned senior Advocate, appearing for the applicant, Sri Rajul

Bhargav, Advocate, representing the complainant and AGA for the

State.

4.The first and foremost submission made by learned

counsel for the applicant was that similarly placed co-accused

Veer Singh has been granted bail by another bench of this Court

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vide order dated 16.12.2008, passed in Crl. Misc. Bail Application

No. 33587 of 2008, and hence on the basis of principle of parity,

the applicant also is entitled to be released on bail. The

contention of learned counsel for the applicant was that

according to the FIR and statements of witnesses, all the

accused persons, who were armed with firearms, had fired on the

deceased Satya Pal Singh and Vinay and since the role of

applicant and co-accused Veer Singh was identical, hence to

maintain consistency and on the basis of the principle of parity,

the applicant also should be released on bail.

5.On the matter of granting bail to the applicant on the

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

learned counsel for the complainant and AGA that parity cannot

be the sole ground for bail and hence the applicant should not be

released on bail on the basis of bail order dated 16.12.2008

passed on the bail application of co-accused Veer Singh by

another Bench of this Court. It was also contended by learned

AGA that order dated 16.12.2008 on the bail application of co-

accused Veer Singh has been passed in flagrant violation of well

settled principle, hence this Bench is not bound to grant bail to the

applicant Nahar Singh on the ground of parity. For this

submission, reliance has been placed on Chandar @ Chandra

vs State of U.P. 1998 UP Cr. 263.

6.Having given my thoughtful consideration to the

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submissions made by learned counsel for the parties on the matter

of granting bail on the basis of the principle of parity, I entirely agree

with the submission of learned counsel for the complainant and

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

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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.”

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

61 of the reports:

10. ...........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

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be released on bail (Exceptional cases as

discussed above apart).....”

11. 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.”

12. 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.”

13. 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

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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.”

14. 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

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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.”

15. 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

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

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be retained. Can one illegality be

compounded by permitting similar illegal

or illegitimate or ultra vires acts? Answer

is obviously, no.”

16. 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.”

17. 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

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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.“

18. 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.

19. 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.

20. The matter of granting bail on the principle of parity

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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.

21. 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

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

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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.

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

in Quinn vs. Leathern, 1901 AC 495:-

“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

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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”.

23. 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.”

24. In Bhavnagar University vs. Palittana Sugar Mills

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

Court observed:-

“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”.

25. 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

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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)

26. 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,

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”.

27. 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

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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”.

28. 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

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

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branches. My plea is to keep the path of justice

clear of obstructions which could impede it”.

(Emphasis supplied)

29. 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.

30. 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

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.

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

applicant that the witnesses had not sustained firearm injuries and

hence, their presence at the place of incident is doubtful.

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32. Next submission made by learned senior counsel

appearing for the applicant was that in addition to the applicant

Nahar Singh, who is alleged to be armed with country made pistol,

the co-accused Charan Singh, Sundar and Veer Singh also were

having firearms and since all the accused persons having fire arms

are said to have fired indiscriminately on the deceased persons,

hence it cannot be said that the applicant alone was the author of

fatal injuries caused to the deceased and hence on this ground

also, the applicant deserves bail.

33. It was also submitted by learned counsel that the

applicant is languishing in jail since 04.08.2007 and on the basis

of long detention period in jail, he deserves bail now, as due to

delay in trial, his fundamental right of speedy trial envisaged

under Article 21 of the Constitution is being violated.

34. The bail application was vehemently opposed by

learned counsel for the complainant and AGA contending that

specific role of firing has been attributed to the applicant Nahar

Singh in addition to other accused persons having firearm and

hence in this heinous crime of taking away the life of two innocent

persons without any lawful excuse, the applicant should not be

released on bail.

35. It was also submitted by learned counsel for the

complainant that Smt. Sukhdeyee, wife of deceased Vinay and

Smt. Maya (complainant) also had sustained injuries in the same

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incident, hence their presence at the place of incident cannot be

doubtful. For this submission, my attention was drawn towards

injury reports (annexure SA-1 and SA 02 to the supplementary

affidavit dated 28.07.2009).

36. I have gone through the entire case diary and other

material on record. There is sufficient prima facie evidence to show

that the applicant Nahar Singh also had fired on the deceased

persons by country made pistol. Annexure-2 to the bail application

is the copy of post mortem report of the dead body of deceased

Satyapal, which shows that as many as six firearm wounds of entry

in addition to blackening in an area of 7x5cm. On right side of

forehead (ante mortem injury no.1) and exit wounds were found on

his person at the time of post mortem examination. The post

mortem report (paper No. 22) of the dead body of deceased Vinay

shows that two ante mortem firearm wound of entry having their

corresponding exit wounds were found on his person in addition to

the ante mortem lacerated wounds. Both the deceased persons

died due to shock and haemorrhage as a result of ante mortem

injuries. The complainant Smt. Maya has been examined in trial

court in S.T. No. 623 of 2007, Annexure-7 to the supplementary

affidavit is the copy of statement of Smt. Maya, from which also,

prima facie involvement of applicant Nahar Singh in the alleged

incident by firing from country made pistol is established. Therefore,

having regard to all these facts and keeping in view the nature of

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offence alleged to have been committed by the accused persons, in

this heinous crime of broad day light double murder, the applicant

does not deserves bail.

37. 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

not be violative of Article 21 of the Constitution.

38. Consequently, the bail application is hereby rejected.

39. The trial court concerned is directed to conclude the

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

six months avoiding unnecessary adjournments and applying the

provisions of Section 309 Cr.P.C.

40.SSP Mathura 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 witnesses are produced in sessions trial No.

623 of 2007 without causing any delay.

41. Sessions Judge Mathura will also ensure that trial of

the accused persons is concluded within aforesaid period.

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

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

Mathura for necessary action.

vk. updh.

Dtd: 16

th

September, 2009.