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Madhya Pradesh High Court · body

2012 DIGILAW 977 (MP)

Manoj Kushwah v. State of M. P.

2012-10-04

S.K.GANGELE

body2012
Judgment S.K. Gangele, J.;- 1. This is the second bail application under Section 439 of Cr.P.C. filed by the applicant on the ground that other accused persons have been enlarged on bail by this Court. Earlier, the first bail application of the applicant was rejected by this Court vide order dt. 1.8.2012 passed in M. Cr.C. No. 4808/2012. In the aforesaid order, this Court has made the following observations :- One Sunil Rajawat had been brought into custody on 21-07/2011 at Police Station G.R.P., Gwalior (B.G.). The allegation is that he was beaten by the police personnels and due to the aforesaid act, he died. Subsequently, his dead body had been thrown into the river Chambal. The Special Railway Magistrate First Class, Mr. Jitendra Singh Kushwah conducted an enquiry and found that the aforesaid person was killed by the police personnels and thereafter, his dead body had been thrown into the river Chambal. Dead body was packed in a box and it had been carried out in a jeep. The applicant was also a party of the aforesaid police personnels. There is an evidence that the applicant had taken alongwith other co-accused persons the dead body of deceased in a box to the river Chambal. The argument advanced by the learned Counsel for the applicant is that the applicant was working as Constable and there is no direct evidence available against the applicant, hence, he may be released on bail. However, in my opinion, the crime is serious in nature because a person was died in the police custody. Under Section 164 (5) of Code of Criminal Procedure, statements of the witnesses have also been recorded by the Judicial Magistrate and the involvement of the applicant in the crime has clearly been mentioned by the witnesses in their statements. Looking to the aforesaid facts of the case and also considering the fact that offence is in regard to commission of murder in the police custody and thereafter, concealment of the body of the deceased, in my opinion, this is not a fit case to enlarge the applicant on bail. Hence, I do not find any merit in this application. It is hereby rejected. 2. Subsequently, the other accused persons have been admitted to bail by another Bench. It is a fact that other accused persons have been admitted to bail by another Bench. Hence, I do not find any merit in this application. It is hereby rejected. 2. Subsequently, the other accused persons have been admitted to bail by another Bench. It is a fact that other accused persons have been admitted to bail by another Bench. One of the order is dated 3.9.2012 passed in M. Cr.C. No. 4104/2012, but it is a fact that while passing the aforesaid order, the court has not considered the fact that bail application of the present applicant had been dismissed. It appears that the order passed by this Court in the case of present applicant was not brought to the notice of the court deliberately. Division Bench of this Court in the case of Dileep Khare Vs. State of M.P. (M. Cr.C. No. 7230/11), by answering a reference has held as under in regard to necessity to consider the order of refusal or granting bail to another co- accused and also the effect of the order and answered the reference accordingly :- 15. In the aforesaid background, the format prescribed under Chapter 10 of Rule 54 of the Rules of 2008 in filing the application for bail before the High Court is to be considered. In our opinion, it is necessary to mention the fact in regard to fate of the bail application/applications of another co-accused so the judge while considering the bail application of another co-accused can take into consideration the fact in order to avoid the conflicting orders on the same subject because it is not in the interest of justice that the conflicting orders be passed in the same case. It would be against the credibility of the Institution and it would also create an adverse impression in the minds of the litigants. The arguments advanced at the bar that it is not possible for an accused arrested in a criminal case to find out that whether other co-accused have filed the bail application or application could not be accepted because registry has a computerized filing system and from computer or Internet it can easily be find out that whether other co-accused have filed the bail applications or not and whether it was rejected or not. It is common knowledge that if any co-accused is enlarged on bail, the other accused person/s know the fact immediately. 16. It is common knowledge that if any co-accused is enlarged on bail, the other accused person/s know the fact immediately. 16. The Hon'ble Supreme Court in the case of Shahzad Hasan Khan (supra) has clearly observed that there may be unanimity in the orders of the courts passed in the same set of facts and this principle is in consonance with the legal principle of law that on the same set of facts there would not be divergent views of the courts. The Hon'ble Supreme Court further observed that a litigant be not permitted to select a court depending upon whether the court is of his liking or not. In this background in our opinion, it is necessary for the judge, who is deciding the subsequent bail application of a co accused to consider the fact that earlier bail application of another co-accused on similar set of facts had been rejected by another Bench. This fact is not a binding precedent on the court but atleast it is obligatory on the part of the court to consider the aforesaid fact. So an inference can be drawn from the order of the court that the learned Judge while deciding the bail application has applied its mind to all the relevant circumstances and evidence of the case as observed by the Hon'ble Supreme Court in several judgments quoted above in the order. The learned Counsel appearing on behalf of the applicant has relied on the Division Bench decision of Allahabad High Court in the case of Nanha Vs. State of U.P. Reported in 1993 Cri. L.J. 938. In the aforesaid judgment, Division Bench of Allahabad High Court has held that the fact of rejection of earlier application of bail of another co-accused could not be considered in the matter of considering the bail application of another co-accused on the ground that the accused whose bail application is being considered by the court had no opportunity to put forward his case before the court which had refused the applicant of another co-accused. The judgment of Allahabad High Court is distinguishable on the facts of the case that in our High Court specific rules have been framed by the High Court and format has been prescribed in regard to filing of the bail applications and as per the format, it is necessary for the accused to mention the fact in regard to status and fate of bail application (s) of other co-accused person(s) and that has been consciously added in order to bring into notice to the court about the order which has been passed in the case of another co-accused and if there is no obligation on the part of the court to consider the aforesaid fact while granting the bail to other co accused, it would be an empty formality and that would be against the intention of the Rules of 2008. 17. It is well settled principle of law that only those orders in which the relevant facts have been considered by the court could be binding on another Bench. The Hon'ble Supreme Court in the case of Anwari Begum Vs. Sher Mohammad and another reported in 2005 SCC (Cri) 1669 has held as under about the aforesaid principle: There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. Any order dehors of such reasons suffers from non application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. The factors which the court must consider among other circumstances before granting bail are (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. 18. 18. In our opinion, the same principle can be applied by the court while deciding the application of bail of an accused when the co accused has been granted the benefit of bail. Normally, if the order has been passed after considering all the relevant facts as mentioned by the Hon'ble Supreme Court and quoted above in this order by the court, then certainly another court is bound to grant same benefit to another co-accused whose case is similarly situated on the ground of parity. However, if those facts have not been considered by the court as mentioned by the Division Bench of this Court in 1989 JLJ 323 , then the court can refuse to grant benefit to the co-accused after recording reasons. On the basis of the above discussions, we answer the reference accordingly : 1. That the provisions made under Rule 57 Chapter X and Format 14, mentioning of particulars of bail applications of other co-accused persons, is not a mere formality. Those provisions have been made to maintain harmony in deciding similar bail applications. It is necessary to mention the facts in application filed under Section 328, 439 of Cr.P.C. as per rules. 2. That it is necessary for another Bench to consider the fact that the bail application of another co-accused similarly situated has been rejected earlier, but the order of rejection is not binding on the court. However, the court has to take into consideration the aforesaid fact and it would be obligatory on the court to mention the aforesaid fact in the order. 3. That if the order passed by the court of granting bail to an accused has been passed without considering the evidence and other facts of the case as mentioned above in the order, then it would be necessary for another Bench to grant benefit of bail to another co - accused on the grant of parity and the court can reject the application after recording adequate reasons or matter can be referred for consideration to the larger bench in accordance with the provisions of Rules of 2008. We answer the reference accordingly. The allegation against the present applicant is that he was also a party in concealing the dead body of the deceased, who was killed in police custody. There is evidence that the present applicant participated in the offence. We answer the reference accordingly. The allegation against the present applicant is that he was also a party in concealing the dead body of the deceased, who was killed in police custody. There is evidence that the present applicant participated in the offence. I have considered the facts of the case in detail. In my opinion, no case is made out for grant of bail to the present applicant. The application is hereby rejected.