Virendra Vikram Singh, J.— Rajendra Nishad, the accused facing trial for offence bearing Crime No.958 of 2010 under Section 147/148/149/302/307/506 I.P.C., Police Station, Barhalganj, District Gorakhpur, has applied for his release on bail. The prosecution version is that on 28.11.2010, at 4 O'clock in the evening, while the complainant Ram Niwas along with his cousin Raja Ram, Kanhaiya and Sonu were coming back to their houses, that on their way, they were intercepted by seven accused, nominated in the F.I.R. including the applicant. On being exhorted, Nav Ratan fired upon Raja Ram. Ramesh, Narsingh and the present applicant indiscriminately fired with the fire arms, they had, and caused injuries to Kanhaiya and Sonu. Raja Ram was brought to Gorakhpur District Hospital, where he succumbed to the injuries sustained by him. About the motive to commit the offence, it has been mentioned in the F.I.R. that prior to this occurrence, on 24.9.2010, one Jitan Prashad, uncle of the complainant was shot at by the accused persons nominated in the present F.I.R. and they were pressurizing to have a compromise or to face the dire consequences thereof. The applicant is also nominated as accused in the F.I.R. The present bail application has been pressed on the ground that all the co-accused have been enlarged on bail and the case against the applicant is at par with the case of Narsingh and Ramesh, who have been granted bail by this Court and by court below. Hence, on the ground of parity, as also on the ground that the role of causing fatal injury to Raja Ram has been assigned to Nav Ratan alone, the prayer for bail has been made. Learned counsel for the complainant and learned AGA have vehemently opposed the application for bail on the ground that there exists criminal history against the applicant and further that the applicant was previously convicted in two different criminal trials against him. It is proper to mention it here that on behalf of the applicant, while filing the affidavit of Vijay Kumar Nishad, it has been conceded that in Case Crime No.238 of 1991, under Sections 302, 201 I.P.C., Police Station Bahralganj, the applicant and co-accused Ramakant were convicted by the judgement dated 30.6.1998 and were sentenced to undergo life imprisonment. It is proper to mention it here that on behalf of the applicant, while filing the affidavit of Vijay Kumar Nishad, it has been conceded that in Case Crime No.238 of 1991, under Sections 302, 201 I.P.C., Police Station Bahralganj, the applicant and co-accused Ramakant were convicted by the judgement dated 30.6.1998 and were sentenced to undergo life imprisonment. It has further been accepted that in Sessions Trial No.403 of 1994 for offence under Section 307 read with Section 34 I.P.C., the applicant and co-accused Ramakant and Ramesh were convicted to undergo rigorous imprisonment for five years with stipulation of fine. It has been mentioned that against both the convictions, appeal was filed before this Court in which all the appellants were ordered to be released on bail. About the other criminal history filed by the learned AGA and learned counsel for the complainant, it has been sweared in the affidavit that most of the cases have ended in acquittal and in some of the cases, the applicant is on bail. Since the ground of parity has been advanced, it is proper to mention it here as to how the co-accused were released on bail. The accused persons Navratan and Matru were found to be juvenile and they were released on bail accordingly. Smt. Dudhiya was enlarged on bail as she was a lady and further that the role assigned to her was exhortation only. Ramesh Nishad has been granted bail by this Court. The other accused Nar Singh and Ramakant have been granted bail by the Sessions Judge, Gorakhpur. The principle of release of bail on parity has been considered in some of the judgments which are being quoted herewith. In the case of Nanha Vs. State of U.P., 1993 (3) ACC, 281, the Division Bench of this Court has held that where the case of co-accused is identically similar and another co-accused has been granted bail by the courts the said co-accused is entitled to be released on bail on account of desirability of consistency and equity. It has been held that law of parity is desirable rule. Now question arises whether on simple ground that the case against the the two accused persons being similar on merits alone, whether the principle of parity can be applied without ignoring other facts. It has been held that law of parity is desirable rule. Now question arises whether on simple ground that the case against the the two accused persons being similar on merits alone, whether the principle of parity can be applied without ignoring other facts. While granting bail to an accused, the Court has not only to consider the merits but has also to see whether there exists any chance of the applicant to flee from the course of justice and further that whether there are any chance for the applicant to influence or pressurize the witnesses. Thus, simply on the ground that evidence against the two accused persons is similar, the accused can not claim bail as right. This Court in the case of Amarnath Yadav Vs. State of U.P., 2010(1) JIC, 422, (Allahabad) has held that by granting of bail by one Bench to any accused, another Bench is not under obligation to grant bail to similarly placed co-accused on the basis of principle of parity without considering the merit. In this case, the pronouncement of the Full Bench of this Court in the case of Sunder Lal Vs. State, 1983 CR.L.J., 736, was considered wherein the principle of parity was declined with the following observation:- "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." Granting of bail on the ground of parity has again been considered and refused in the case of Chander @ Chandra vs. State of U.P., 1998 U.P. Criminal Rules, 263, whereby the Division Bench has held that if bail has been granted in flagrant violation of well settled principles, and the order granting bail would not be in accordance with law, such order can never form the basis for a claim founded on parity. It was held that in such case, 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. It was held that in such case, 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. The discussion made above abundantly goes to show that principle of parity apply when the case against the two accused persons is similar in all respects and further that the order granting bail to co-accused was passed on well known principles. It is again necessary that the test provided for release of bail to both the accused persons stand fulfilled and are similar in both the two cases. While considering the proposition of law discussed above the present case is being considered. Smt. Dudhyia has been granted bail by the Court of session on the ground that she is a lady and the role assigned to her is only that she exhorted and that she did not participate at all in causing injury to any person. Such is not the case against the present applicant. Hence, he cannot claim parity with the bail granted to the co-accused Smt.Dudhiya. The case against Navratan, co-accused definitely stands on a graver footing as he has been assigned the role of causing fatal injury to Rajaram. It is not denied that Navratan and Mantu co-accused has been granted bail on the ground that as they were declared juvenile. Bail to juvenile has granted under the provision of Section 12 of U.P. Juvenile Justice (Care and Protection of Children) Act, 2000 whereby grant of bail is a rule and the same can be denied only on the existence of the grounds enumerated therein. The section also provides non-application of the provisions of Criminal Procedure Code. Since the bail of the present applicant has to be considered under the provision of Cr.P.C. alone, the grant of bail to Navratan and Mantu shall be of no consequence in favour of the applicant. Bail of Ramakant is again of no consequences to favour the applicant as the same is distinguishable on merits. As per version in the F.I.R., he has not taken any positive role in commission of offence. It is true that Rama Kant was a previous convict but the bail order shows that this fact has not been taken into consideration by the Court even though the fact is mentioned in the bail order. As per version in the F.I.R., he has not taken any positive role in commission of offence. It is true that Rama Kant was a previous convict but the bail order shows that this fact has not been taken into consideration by the Court even though the fact is mentioned in the bail order. Since the provisions of Sec. 437(ii) Cr.P.C. were not taken into consideration in this order,the same can also not come to the rescue of the applicant. It is not disputed that the accused persons Ramesh, Narsingh and the present applicant have been assigned the similar role in the F.I.R. that they indiscriminately fired causing injuries to Kanahiya and Sonu. The merits of the case against the applicant appears to be distinguishable on the ground of previous convictions against him on two different counts. What shall be the effect of the previous conviction of the accused on the issue of grant of bail, has been considered under the provisions of Section 437 Code of Criminal Procedure,1973 (to be referred as Cr.P.C. herinafter). The relevant part of the provision of Section 437 Cr.P.C. is being quoted below:- "437. What shall be the effect of the previous conviction of the accused on the issue of grant of bail, has been considered under the provisions of Section 437 Code of Criminal Procedure,1973 (to be referred as Cr.P.C. herinafter). The relevant part of the provision of Section 437 Cr.P.C. is being quoted below:- "437. When bail may be taken in case of non-bailable offence- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously, convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a (a cognizable offence punishable with imprisonment for three years or more but not less than seven years): Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason." In the case of Ram Prakash Pandey Vs. State of U.P. and others, 2001 (2) JIC., page 681, the Apex Court while considering the grant of bail to a person who has previously been convicted of offence punishable with life imprisonment as is the case against the applicant, has held as follows:- "11. State of U.P. and others, 2001 (2) JIC., page 681, the Apex Court while considering the grant of bail to a person who has previously been convicted of offence punishable with life imprisonment as is the case against the applicant, has held as follows:- "11. Thus a person who has been previously convicted of an offence punishable with life imprisonment shall not be released on bail unless there is no reasonable ground for believing that the person has committed the offence and/or there are special reasons to do so." It is true that the case against the co-accused Ramesh Nishad and Narsingh stands on same footing as that the applicant. Ramesh Nishad was convicted for offence under Section 307 I.P.C. along with the applicant and Rama Kant was convicted for offence under Section Section 302/34 I.P.C. along with the applicant. The bail order of Ramesh Nishad shows that previous conviction against the applicant was never brought to the notice of the Court and the bail granted to co-accused Ramakant by the Session Judge, Gorakhpur though mentions about the previous conviction of Narsingh but no finding as provided under Section 437 (ii) Cr.P.C. has been considered, hence, these two bail orders cannot help the applicant. It has next been argued that in both the two cases in which the applicant was convicted, appeal has been admitted for hearing by the High Court and the applicant has been released on bail. At this juncture, the question comes as to whether the status of the applicant after his release on bail remains as convict of the case or not. In order to appreciate this argument, provision of Section 389 Cr.P.C. needs be quoted. "389. At this juncture, the question comes as to whether the status of the applicant after his release on bail remains as convict of the case or not. In order to appreciate this argument, provision of Section 389 Cr.P.C. needs be quoted. "389. Suspension of sentence pending the appeal: release of appellant on bail - (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: (Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release : Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.) (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." A bare perusal of the provision of Section 389 clearly goes to show that the Appellate Court while admitting any appeal for hearing suspends the execution of the sentence and orders for release of the appellant on bail but in such a position, the order of conviction remains intact until it is set aside by the final verdict of the Appellate Court. Thus, the status of the applicant despite the admission of appeals and his release on bail was that of convict and he cannot be exonerated of the consequences provided under Section 437 (ii) Cr.P.C. The evidence in the present case is that the accused persons in prosecution of the common object of unlawful assembly caused the death of Raja Ram and caused fire arm injuries to two persons namely Kanahiya and Sonu. Thus, no finding can be recorded that there does not appear any reasonable ground for believing that the applicant is not guilty of the charges levelled against him. Having considered the facts and circumstances of the case as also the legal analogy the applicant who stood convicted on two counts for the offences like murder and attempt to murder can not be allowed to be released on bail. The application for bail is hereby rejected. However the trial Court is directed to proceed with the trial as expeditiously as possible, keeping in view the provisions of Sec. 309 CrPC, preferably within a period of six months to be computed from the date of production of certified copy of this order. _____________