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2014 DIGILAW 1897 (RAJ)

Sandeep Alias Sahvag v. State of Rajasthan

2014-11-25

PRASHANT KUMAR AGARWAL

body2014
Hon'ble AGARWAL, J.—Each of the accused-petitioner has moved separate application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 241/2014 registered on 18.3.2014 at Police Station Behror (District Alwar) for the offences under Sections 147 and 302 IPC. 2. The allegation against the petitioners and co-accused is that they entered into a criminal conspiracy to cause death of deceased Shri Ramesh Chandra and in pursuance of that conspiracy, co-accused Rakesh Gurjar and Madu Ram entered into this his house and inflicted several injuries to the deceased as a result of which he died while taken to hospital. It is to be noted that after investigation charge-sheet has already been filed against the petitioners and the co-accused for the offences under Sections 147, 452, 302 read with Section 120-B IPC. 3. The bail application filed by accused-petitioner Shri Madu Ram has been dismissed by the trial Court vide order dated 16.11.2014, that of accused-petitioner-Shri Sandeep alias Sahvag vide order dated 9.9.2014 and that of accused-petitioner Shri Malkhan Singh has been dismissed by the trial Court vide order dated 8.10.2014. It is also to be noted that benefit of bail under Section 439 Cr.P.C. has been granted to co-accused Shri Subhash by the Co-ordinate Bench of this Court vide order dated 1.10.2014. As all these bail applications arise out of the same FIR and incident, with the consent of learned counsel for the parties, they were heard together and are being disposed of by this common order. 4. First of all it was submitted on behalf of the petitioners that benefit of bail has already been granted to co-accused Shri Subhash by the Co-ordinate Bench vide order dated 1.10.2014 after taking into consideration the over all facts and circumstances of the case as well as the evidence collected during investigation which was placed before the Co-ordinate Bench by way of copy of the charge-sheet and more particularly the role attributed to the co-accused Shri Subhash in the incident and, therefore, the present petitioners are also entitled to get the same benefit of bail on the ground of parity as their case is also on the same footing as that of the co-accused Shri Subhash to whom benefit of bail has already been granted. It was further submitted that like co-accused-Shri Subhash, the role attributed to petitioners Shri Sandeep alias Sahvag and Shri Malkhan Singh at the most is that they were also waiting for the co-accused with motorcycles outside the house of the deceased and it is not even the case of the prosecution that they entered into the house and inflicted injuries to the deceased. It was also submitted that judicial discipline requires that if a Single Bench of the High Court has taken a view in a case, the Co-ordinate Bench of the High Court must follow the view taken by the Co-ordinate Bench if the cases are based on similar factual footing and if by any reason the subsequent Co-ordinate Bench decides not to follow the view taken by the previous Co-ordinate Bench, the case must be referred to a Larger Bench, but the subsequent Co-ordinate Bench should not take a contrary view. In the present case as the Co-ordinate Bench after taking into consideration all the facts and circumstances of the case including the role attributed to the co-accused Shri Subhash was pleased to grant benefit of bail to him, the same treatment should be given to the present petitioners also. 5. In support of their submissions, learned counsel for the petitioners relied upon the cases of U.P.Gram Panchayat Adhikari Sangh & Ors. vs. Daya Ram Saroj & Ors. reported in (2007) 2 SCC 138 , Official Liquidator vs. Dayanand & Ors. reported in (2008) 10 SCC 1 , Avtar Singh vs. State of Punjab reported in (2010) 15 SCC 529 and Yunis & Anr. vs. State of U.P. 1999 Crl. L.J. 4094 (Allahabad High Court). 6. vs. Daya Ram Saroj & Ors. reported in (2007) 2 SCC 138 , Official Liquidator vs. Dayanand & Ors. reported in (2008) 10 SCC 1 , Avtar Singh vs. State of Punjab reported in (2010) 15 SCC 529 and Yunis & Anr. vs. State of U.P. 1999 Crl. L.J. 4094 (Allahabad High Court). 6. On the other hand learned Public Prosecutor assisted by the learned counsel for the complainant submitted that in the present case benefit of bail cannot be granted to the petitioners only by the reason that Co-ordinate Bench has been pleased to grant benefit of bail to the co-accused Shri Subhash because while considering the bail application filed on behalf of the co-accused Shri Subhash the learned Co-ordinate Bench did not take into consideration this important fact that the co-accused Shri Subhash has been implicated in the case with the aid of Section 120-B IPC and it has been found during investigation that he was also present outside the house of the deceased in which the offence of murder was committed with motorcycles and after commission of offence all the accused including co-accused Shri Subhash fled away from the place of incident together. It was further submitted that it is well settled legal position that if benefit of bail has been granted to a co-accused without taking into consideration an important and relevant fact, the other co-accused even if similarly situated cannot be granted benefit of bail only on the ground of parity. It was also submitted that in the present case as he aforesaid important and relevant fact was neither brought to the knowledge of learned Co-ordinate Bench nor it was taken into consideration rather it was over looked by the learned Co-ordinate Bench, the present petitioners are not entitled to be released on bail only on the ground of parity. It was also submitted that in the present case as he aforesaid important and relevant fact was neither brought to the knowledge of learned Co-ordinate Bench nor it was taken into consideration rather it was over looked by the learned Co-ordinate Bench, the present petitioners are not entitled to be released on bail only on the ground of parity. It was further submitted that the principle of judicial discipline relied on behalf of the petitioners is applicable only when a Single Bench of the High Court lays down a principle of law and in such situation only the subsequent Single Bench is bound either to follow the view taken by the previous Single Bench or in case of not agreeing with the view taken by the previous Single Bench it should refer the issue for decision by a Larger Bench after expressing his own view, but in bail matters in which generally no principle of law is laid down, the principle of judicial discipline is not applicable. In the present case the order dated 1.10.2014 whereby benefit of bail has been granted to co-accused Shri Subhash shows that no principle of law has been laid down by the Co-ordinate Bench and, therefore, this Bench is not bound to follow the view taken by the Co-ordinate Bench and to grant bail to the petitioners. 7. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the prevalent legal position including the decisions cited on behalf of the petitioners. 8. In the case of Avtar Singh vs. State of Punjab (supra), Hon'ble Supreme Court granted benefit of bail to the accused-appellant-Shri Avtar Singh taking into consideration the fact that some of the accused have already been granted bail. In this case Hon'ble Supreme Court has not laid down the circumstances in which on the ground of parity benefit of bail is to be granted to a similarly situated co-accused. 9. In the case of Official Liquidator vs. Dayanand & Ors. (supra), Hon'ble Supreme Court after referring several previous decisions observed that "If one thing is more necessary in law than any other thing, it is the equality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. 9. In the case of Official Liquidator vs. Dayanand & Ors. (supra), Hon'ble Supreme Court after referring several previous decisions observed that "If one thing is more necessary in law than any other thing, it is the equality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court." 10. It was also observed by Hon'ble Court that "It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such mattes and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself." 11. It is thus clear that principle of judicial discipline and to maintain the judicial propriety and decorum is applicable and is to be followed only when some principle of law is laid down by a Single Bench or Division Bench of the High Court. 12. It is thus clear that principle of judicial discipline and to maintain the judicial propriety and decorum is applicable and is to be followed only when some principle of law is laid down by a Single Bench or Division Bench of the High Court. 12. Similarly, in the case of U.P. Gram Panchayat Adhikari Sangh & Ors. vs. Daya Ram Saroj & Ors. (supra), Hon'ble Supreme Court held that "Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity." 13. From the view expressed by Hon'ble Apex Court in the aforesaid case it is clear that the principle of judicial discipline is applicable only when the subsequent bench proceeds to take a different view on some question of law. It is thus clear that the principle of judicial discipline and maintenance of judicial decorum and propriety would not be applicable if no principle of law has been laid down by a previous Single Bench of the High Court. 14. In the case of Yunis & Anr. vs. State of U.P. (supra), Single Bench of Hon'ble Allahabad High Court held that the law of parity may be applied in granting bail to a co-accused, but cannot be invoked in rejecting the bail application of another co-accused. It was also held that the law of parity is a desirable rule. In matter of release on bail to the co-accused may be applied where the case of the co-accused is identically similar, but cannot be applied for rejecting the bail application of co-accused. A co-accused cannot be denied bail, merely on the ground that the bail of another accused has been rejected by the Court earlier, the obvious reason being that while the earlier bail order denying bail to an another co-accused was passed, the latter co-accused applying for bail was not heard. 15. A co-accused cannot be denied bail, merely on the ground that the bail of another accused has been rejected by the Court earlier, the obvious reason being that while the earlier bail order denying bail to an another co-accused was passed, the latter co-accused applying for bail was not heard. 15. In the case of Chander alias Chandra vs. State of U.P. reported in 1998 Allahabad Law Journal 870, learned Division Bench of the Allahabad High Court held that 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. The law recognises only a speaking order of a finding which are in fact reasons in support of the order and they only give a right to the party to claim that the proceedings which have attained finality should not be reopened. A fortiori an accused claiming bail on the ground of parity can do so only on the basis of an order which contains reasons. It is therefore clear that failure of justice may be occasioned if bail is granted to an accused on the basis of parity with another co-accused whose bail order does not contain any reason. It was further held by the Division Bench 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 legal principles and ignores to take into consideration the relevant facts essential for granting bail. 16. In the case of Nanha vs. State of U.P. 1993 Criminal Law Journal 938 (Allahabad High Court), Hon'ble Division Bench of the High Court after taking into consideration several previous decisions held that if on examination of a given case, it transpires that the case of the applicant seeking bail is identically similar to the accused, who has been bailed out, then the desirability of consistency will require that the applicant should also be released on bail. 17. 17. It was further held that the parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail applications of the co-accused whose bail application 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 materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. Thus, the case of an accused has to be examined individually. Simply because the co-accused has been granted bail cannot be sole criteria for granting bail to the main accused. 18. It was also held that nonetheless the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a judge in a tight and straight jacket to grant bail automatically. There may be case which may require an exception; where a judge may not simply take a different view from the judge who granted bail earlier to a co-accused, but where the conscience of the judge revolts in granting bail. In such a situation the judge may choose to depart from the rule recording his reasons. However, such cases would be very few. 19. In the case of Sita Pati vs. State reported in (1996) 20 All. Cri. R. 35 (as referred in the case of Yunis & Anr. vs. State of U.P. cited on behalf of the petitioners), it was held by the Hon'ble Allahabad High Court that the facts of each case differ and even a seemingly insignificant fact may change the entire complexion of the case. If bail is granted or refused in one case it does not have the effect of laying down in law and as such a bail order cannot be cited as precedent. Bail cannot be allowed or refused on the ground that bail has been granted or refused in a similar case, but different case because each case has its own peculiarities and the question of parity does not arise at all. 20. In the case of Nahar Singh vs. State of U.P. vide order dated 16.9.2009 passed in Criminal Misc. Bail cannot be allowed or refused on the ground that bail has been granted or refused in a similar case, but different case because each case has its own peculiarities and the question of parity does not arise at all. 20. In the case of Nahar Singh vs. State of U.P. vide order dated 16.9.2009 passed in Criminal Misc. Bail Application No. 4787/2009 in para 30 of the order it was held that on granting 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. 21. Similarly, in the case of Gufran Ahmad vs. State of U.P. vide order dated 24.2.2011, a Single Bench of Hon'ble Allahabad High Court in Criminal Misc. Bail Application No. 33250/2009 after taking into consideration several previous decisions held that it is well settled that the question of extending parity to the applicant-accused does not arise in a case, where the bail order passed in favour of the co-accused is not supported with any reasons or it has been passed in flagrant violations of well settled principles or it has not taken into consideration relevant materials having bearing on the question of bail or new material, evidence or circumstance has cropped up after the release of the co-accused on bail. If the bail in favour of the co-accused has been granted with reasons on merits and the case of the applicant is identical in all respect and every relevant material of the case had been taken into consi-deration while enlarging the co-accused on bail and no new or fresh material or evidence surfaced thereafter and also there was no violation of any settled legal principles, it is desirable to grant bail to the applicant for maintaining consistency. Whether or not the parity is to be extended to the applicant, is a question of fact which needs to be examined in each and every case independently keeping in view the facts and circumstances of the case and no straight jacket formula or hard and fast rule can be laid down in this regard. 22. Learned Single Bench of this High Court in the case of Sohan Lal vs. State of Rajasthan vide order dated 6.5.2010 passed in S.B. Criminal Misc. 22. Learned Single Bench of this High Court in the case of Sohan Lal vs. State of Rajasthan vide order dated 6.5.2010 passed in S.B. Criminal Misc. Bail Application No. 2992/2010 on the question of grant of bail to an accused on the ground of parity held that the question of parity can claimed or looked into, if the arguments raised are some. Each bail application has to be decided on its own arguments and mere grant of bail to the co-accused, the Court cannot be barred to look into the arguments, otherwise it will become a case where bail has to be granted without application of mind. It was further held that it has to be clarified that grant or rejection of the bail are not treated as precedent, as bail orders are passed based on the arguments of the parties, thus cannot be treated as precedent, more so no ratio is evolved generally. Question of parity comes when not only cases are similarly placed, but considerations of issue are also similar. In a case where the arguments are different, obviously appreciation of those arguments would also be different and cannot be taken to be a case of parity in those circumstances. 23. Thus, the law for the grant of bail on the ground of parity may be summarized as below:- (1) To maintain consistency it is desirable that co-accused must also get benefit of bail if its case stands on the same footing as that of the accused to whom such benefit has already been granted by a co-ordinate Bench. (2) But such principle would not be applicable if the previous order has been passed in flagrant violations of well settled principles of law or it has not taken into consideration the relevant materials having bearing on the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. Parity can be the sole ground for bail without considering the merit of the case. (3) Usually grant or rejection of bail is not treated as precedent as generally bail orders are passed based on the arguments of the parties after taking into consideration all the facts and circumstances of the case. 24. Parity can be the sole ground for bail without considering the merit of the case. (3) Usually grant or rejection of bail is not treated as precedent as generally bail orders are passed based on the arguments of the parties after taking into consideration all the facts and circumstances of the case. 24. If in the light of aforesaid legal position facts of the present case are considered the petitioners are not entitled to get benefit of bail on the ground of parity because the learned coordinate bench while granting bail to the co-accused Shri Subhash did not take into consideration this important and relevant fact that just after the incident the co-accused also filed away from the place of incident on motorcycle alongwith the other accused including the petitioners. Departure of co-accused and present petitioners together on motorcycle from the place of incident immediately after the incident is prima facie indication of the fact that all were part of criminal conspiracy in pursuance thereof, injuries were inflicted to the deceased Shri Ramesh Chandra by co-accused Rakesh and petitioner Shri Madu Ram. 25. Consequently, the prayer for bail on the ground of parity is disallowed. 26. So far as grant of bail to the petitioners on merit is concerned, learned counsel for the petitioners raised the following grounds in support of the applications:- (1) The alleged incident is of 17-3-2014 at 8.00 p.m., but FIR has been lodged by the brother of the deceased Shri Bhagat Singh on the next day i.e. on 18.3.2014 at 5.00 p.m. i.e. about more than 20 hours of the incident and no explanation has been furnished for the delay caused. (2) None of the petitioners was named in the FIR as a person involved in the incident although it was mentioned that apart from Smt. Sunita @ Ruby wife of deceased and Shri Rakesh Gurjar, 4-5 persons were also involved in the incident. During investigation it has not been explained by the informer by what source he gathered that present petitioners were also involved in the incident. During investigation it has not been explained by the informer by what source he gathered that present petitioners were also involved in the incident. (3) From the evidence collected during investigation, which has been placed on record by way of copy of the charge-sheet, it is clear that after incident first of all Shri Banwari Lal reached at the place of incident and thereafter brother of deceased Shri Bhagat Singh (informer) and his wife Smt. Ram Rati reached at the place of incident and, therefore, they cannot be said to be eye-witness of the incident. (4) The present petitioners have been involved in the incident mainly on the basis of call details collected during investigation, but it is well settled legal position that such call details have no evidentiary value and the same cannot be used as evidence against an accused and, therefore, the petitioners cannot be involved in the incident on the basis of call details. (5) Even in for the sake of arguments the evidence collected during investigation is believed, for accused-petitioners Sandeep alias Sahvag and Malkhan Singh at the most it can be said that they were present outside the house of the deceased in which the incident took place and it is not the case of prosecution itself that they inflicted injuries to the deceased. (6) So far as petitioner-Shri Madu Ram is concerned, at the most it can be said that after entering into the house of the deceased he inflicted injuries by using a stick but there is no evidence that the deceased died as a result of an injury allegedly inflicted by this petitioner. (7) The petitioners are in judicial custody since long and there is no possibility of the trial to be concluded in near future. 27. In support of their submissions, learned counsel for the petitioners relied upon the case of Babubhai Bhimabhi Bokhiria & Anr. vs. State of Gujarat & Ors. reported in (2014) 5 SCC 568 . 28. (7) The petitioners are in judicial custody since long and there is no possibility of the trial to be concluded in near future. 27. In support of their submissions, learned counsel for the petitioners relied upon the case of Babubhai Bhimabhi Bokhiria & Anr. vs. State of Gujarat & Ors. reported in (2014) 5 SCC 568 . 28. On the other hand learned Public Prosecutor assisted by the learned counsel for the complainant submitted as below:- (1) From the evidence collected during investigation, which has been placed on record by way of charge-sheet, it is more than clear that the present petitioners and co-accused entered into a criminal conspiracy to cause death of Shri Ramesh Chandra, whose wife co-accused- Smt. Sunita @ Ruby was having illicit relations with co-accused Shri Rakesh Gurjar and in pursuance of the same the petitioners and co-accused Shri Subhash and Rakesh Gurjar reached at the house of the deceased and co-accused Shri Rakesh Gurjar and petitioner-Shri Madu Ram entered into the house of the deceased and co-accused Shri Rakesh Gurjar by using an iron rod and petitioner-Shri Madu Ram using a stick inflicted several injuries to the deceased Shri Ramesh Chandra as a result of which he died in way while taken to a hospital. (2) Invowement of the petitioners-Shri Sandeep alias Sahvag and Shri Malkhan Singh is further revealed from the fact that they were waiting with motorcycle outside the house of the deceased and as soon as co-accused Shri Rakesh Gurjar and petitioner-Shri Madu Ram came out from the house after the incident all of them alongwith co-accused Shri Subhash fled away from there on motorcycle together. The role of the petitioners in the incident cannot be said to be mitigated only by the reason that two of them did not enter into the house and did not inflict injuries to the deceased and one of them used only a stick to cause injuries to the deceased. (3) As many as seven other criminal cases are presently pending against the accused petitioner Shri Sandeep alias Sahvag, seven criminal cases are pending against the accused-petitioner-Shri Madu Ram and one more case is pending against the accused-petitioner Shri Malkhan Singh. Previous criminal record of an accused is a good ground to refuse benefit of bail to him. (3) As many as seven other criminal cases are presently pending against the accused petitioner Shri Sandeep alias Sahvag, seven criminal cases are pending against the accused-petitioner-Shri Madu Ram and one more case is pending against the accused-petitioner Shri Malkhan Singh. Previous criminal record of an accused is a good ground to refuse benefit of bail to him. (4) Looking to the criminal background of the petitioners there is every possibility that if benefit of bail is granted to them, they may threaten the material witnesses of the case for not to support the prosecution case. 29. On consideration of submissions made on behalf of the respective parties and the material made available on record as well as the evidence collected during investigation which has been placed on record by way of copy of the charge-sheet and more particularly looking to the gravity of the offence and role attributed to each of the petitioner in the incident, but without expressing any final opinion on the merit and demerit of the case, I do not find it a fit case in which benefit of bail is to be granted to the petitioners. 30. Consequently, all the bail applications are, hereby, dismissed.