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2014 DIGILAW 424 (UTT)

Hemu Pant @ Hemu Kalu v. State of Uttarakhand

2014-09-25

SUDHANSHU DHULIA

body2014
Judgment Sudhanshu Dhulia, J. (Oral) 1. Heard Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Saurav Adhikari, present for the applicant/appellants and Mr. P.S. Saun, learned Deputy Advocate General present for the State of Uttarakhand. 2. This is a third bail application in pending criminal appeal. The appellants/applicants have been convicted, inter alia, under Sections 364/302 of I.P.C. There are two accused/appellants. Earlier the bail application of both the appellants/applicants was rejected vide order dated 18.10.2013 and thereafter on a second bail application moved on behalf of both the applicants/appellants was rejected and while doing so, the Court passed following order on 26.11.2013:- “We are not inclined to grant bail inasmuch as prima facie it does not appear that the conviction is without any basis. The bail application is rejected”. 3. Thereafter, a third bail application (CRMA No.1009 of 2014) was moved on behalf of one accused/appellant, namely, Manish @ Kanchu Matiyani. The Division Bench of this Court granted bail to Manish @ Kanchu Matiyani vide order dated 17.07.2014, which was passed by making following observations:- “Learned counsel for the appellant submits that though six persons were named in the F.I.R., but it transpires from the statement of PW-2, namely, Krishna Kumar Bhakuni that only four persons were allegedly involved in committing the offence of kidnapping and murder of the deceased, however the learned trial Court has acquitted four persons and convicted only two accused. She further submits that from the similar set of evidence, as was produced by the prosecution, two different opinion cannot be formed i.e. one resulting into the acquittal of four accused and another resulting into conviction of two accused. She prayed that the applicant/ appellant is entitled for bail and he may be enlarged from jail. On the other hand, learned counsel for the State opposed the prayer of the accused/ appellant for grant of bail at this stage. Considering the submissions of learned counsel for the applicant/appellant and without expressing any opinion as to final merits of the case, this Court is of the view that applicant deserves bail at this stage. Accordingly, the third bail application is allowed. Let the applicant/appellant- Manish @ Kanchu Matiyani be released on bail during the pendency of this appeal, on his executing personal bond and furnishing two sureties, each in the like amount, to the satisfaction of C.J.M. concerned.” 4. Accordingly, the third bail application is allowed. Let the applicant/appellant- Manish @ Kanchu Matiyani be released on bail during the pendency of this appeal, on his executing personal bond and furnishing two sureties, each in the like amount, to the satisfaction of C.J.M. concerned.” 4. Since bail was granted to the one of the appellants/applicants, who was a co-accused in the case, the other appellant/applicant, namely, the present appellant/applicant also moved his bail application before the Division Bench of this Court, which was hearing the criminal appeals as well as the bails in pending appeals. While one Hon’ble Judge granted the bail to the present applicant on the ground of parity, the other Hon’ble Judge rejected the bail vide order dated 27.09.2014, by holding as under:- “I feel that I have not been persuaded to take a different view to the view I took on 26.11.2013 while sitting with the then Hon’ble Chief Justice of this Court (Justice Barin Ghosh). More so because there is no change in the circumstances and the grounds at the time of haring this application. In my considered opinion, in order to maintain the judicial discipline, subsequent bail application, ordinarily, should be placed before the same Bench, who has rejected earlier bail application. If same Bench is not available for the reason one of the learned Judge has retired or transferred, then it should be placed before the Bench consisting of one of the member of earlier Bench (who is available in the Court). My view is in conformity of the High Court Rule No.-12 Chapter Vth. Hence, bail application is rejected”. 5. In my view, parity is not applicable in each and every case, particularly, in view of the fact that the Division Bench of this Court while rejecting the second bail application had made a categorical observation that it is not inclined to grant bail inasmuch as prima facie “it does not appear that the conviction is without any basis.” 6. Indeed it is a case of circumstantial evidence. All the same, it was, inter alia, the accused who along with other had abducted the deceased, and the dead body was recovered the next day. The body had several ante mortem injuries in the form of incised wounds. 6. After going through the records, therefore, in my opinion, the appellant/applicant, Hemu Pant @ Hemu Kalu, is not entitled for bail. 7. The body had several ante mortem injuries in the form of incised wounds. 6. After going through the records, therefore, in my opinion, the appellant/applicant, Hemu Pant @ Hemu Kalu, is not entitled for bail. 7. The bail application is hereby rejected.