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Allahabad High Court · body

2009 DIGILAW 3785 (ALL)

Mulayam Patel v. State Of U. P.

2009-12-16

ASHOK SRIVASTAVA

body2009
Hon'ble Ashok Srivastava,J. 1. This second bail application has been moved on behalf of the applicant, Mulayam Patel, who is involved in Case Crime No. 181 of 2008, under Section 376 I.P.C. and 3(i)(xii) S.C./S.T. Act, Police Station Sarai Mamrej, district Allahabad. The first bail being Criminal Misc. Bail Application No. 26829 of 2008 was rejected on merits by this court on 17.10.2008 by Hon'ble A.K. Roopanwal, J. This bail application was released by Hon'ble A.K. Roopanwal,J. vide order dated 10.8.2009. 2. The present bail application has been moved mainly on the ground that the co-accused of this case Surendra Patel has been granted bail by this Court on 6.2.2009 in Criminal Misc. Bail Application No. 2755 of 2009. In this context it has been argued that on the ground of parity the second bail application of the applicant should be allowed because role assigned to the co-accused Surendra Patel is identical to the alleged role of the applicant, Mulayam Patel. It has also been contended from the side of the applicant that there are additional grounds also in this second bail application. Heard learned counsel for the applicant and learned A.G.A. and perused the records. 3. From the perusal of the grounds taken in the first bail application and that of second bail application, it is evident that but for the fact that bail application of the co-accused Surendra Patel was allowed on a date which is subsequent to the date on which the first bail application of the applicant was rejected no fresh ground has been taken. Substantial grounds which have been taken in the second bail application are either already been taken in the first bail application or they were available to the applicant when first bail application was moved on his behalf. 4. Therefore, I am confining myself to the legal issue whether the applicant is entitled to be released on bail on the ground of parity. From the perusal of the judgment reported in 2009 (1) J.I.C. 202 (All.) ( Neeraj Vs. 4. Therefore, I am confining myself to the legal issue whether the applicant is entitled to be released on bail on the ground of parity. From the perusal of the judgment reported in 2009 (1) J.I.C. 202 (All.) ( Neeraj Vs. State of U.P.), it is evident that while passing the bail order only this much has been written by the Hon'ble Judges in the relevant para (i.e. para 4) that they have considered the submissions made by learned counsel for the parties and they were of the opinion that case of the appellant was identical to those accused persons who were granted bail in the past on the ground of parity. It will not be out of place to mention here that first para of the aforesaid judgment relates to case crime number, Sessions Trial number etc., second contains facts of the case in brief, third discloses the brief argument advanced before the Hon'ble Judges and the fifth relates to the operative portion of the judgment. The 6th, 7th and 8th paragraphs relate to the matter which have nothing to do with the merits of the case. From the perusal of this order it is evident that no law point whatsoever has been determined by the Hon'ble Judges in that case. Therefore, this ruling is of no help to me. Reference of the case 1993 (30) ACC 281 ( Nanha Vs. State of U.P.) has come in another case which has been reported in 1997 (Supp.) ACC 518 ( Chander @ Chandra Vs. State of U.P.). The case of Nanha (supra) has been discussed in length in the case of Chander @ Chandra Vs. State of U.P. From the perusal of the case of Chander @ Chandra (supra), it is evident that certain questions were referred to the bench to which specific answers had been given and certain law points were determined which are as follows : "Our answers to the questions referred are as follows : 1. If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity. 2. If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity. 2. 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 factors essential for granting bail. 3. A Judge hearing bail application of one accused cannot cancel the bail granted to a co-accused by another Judge on the ground that the same had been granted in flagrant violation of well-settled principals. If he considers it necessary in the interest of justice, he may, after expressing his views, refer the matter to the Judge who had granted bail, for appropriate orders. 4. If it appears that a bail order has been passed in favour of an accused on the basis of wrong or incorrect documents, it is open to any Judge to initiate action for cancellation of bail." 6. My attention has also been drawn towards the order passed in Criminal Misc. Bail Application No. 4787 of 2009 ( Nahar Singh Vs. State of U.P.) and Criminal Misc. Bail Application No. 22882 of 2008 (Amarnath Yadav Vs. State of U.P.). Both the orders have been passed on different dates by Hon'ble Vijay Kumar Verma, J. The ratio of the case of Chander @ Chandra which are contained in paragraphs 1 and 2 of the relevant portion of the judgment, it is evident that if the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to the applicant on the ground of parity. It is also clear 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 contained reasons, if the same has been passed in flagrant violation of well established principles and ignored to take into consideration the relevant factors essential for granting bail. From the perusal of the bail order dated 17.10.2008 through which the first bail application of the applicant was rejected is a detailed and well reasoned order. 7. From the perusal of the bail order dated 17.10.2008 through which the first bail application of the applicant was rejected is a detailed and well reasoned order. 7. I have also examined the bail order passed on 6.2.2009 through which the co-accused Surendra Patel was granted bail in this case. With profound respect to the Hon'ble Judge I have to submit that in my opinion this order does not contain any reason on the basis of which the co-accused Surendra Patel was granted bail. Therefore, I find myself unable to give benefit of this order to the applicant in the second bail application. It should be mentioned here that the allegations against the applicant and the co-accused are of very serious nature. This is a case of gang rape in which a young girl was lifted by the accused persons to a nearby canal which was a lonely place and thereafter she was subjected to the trauma of rape by both the accused persons. It is not a case of simple rape. It has been further submitted from the side of the applicant that the applicant is in jail since 22.7.2008 and he should be given benefit of his long detention in jail. 8. In this regard I have to say that in 2008 (63) ACC page 115 SC (Pramod Kumar Saxena Vs. Union of India), the Apex Court has held that mere long period of incarceration in jail would not be per se illegal and if the accused has committed an offence, he has to remain behind the bars. Such detention in jail even as under trial prisoner would not be violative of Article 21 of the Constitution of India. Therefore, in my opinion, on this ground too, the applicant cannot be released on bail. On the basis of the above discussion, I am of the view that the second bail application has also got no force and accordingly it is rejected.