Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 638 (MP)

Ganesha @ Ganesh v. State Of M. P.

2020-05-28

RAJEEV KUMAR SHRIVASTAVA

body2020
JUDGMENT Rajeev Kumar Shrivastava, J. - Matter is heard through video conferencing. 2. I.A.No.3153/2020, an application for exemption from filing typed copy of the document is taken up, considered and allowed for the reasons mentioned therein. 3. Present first Criminal Appeal has been filed under Section 14- A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, against the order dated 3.3.2020 passed by Special Judge (Atrocities), Shivpuri; whereby, the application of the appellant under Section 438 of Cr.P.C. seeking anticipatory bail has been rejected. 4. Appellant apprehends his arrest in connection with Crime No.96/2019 registered at Police Station Khaniyadhana, District Shivpuri (M.P.) for the offence punishable under Sections 420, 120-B of IPC and section 3 (1) (f) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (recently amended). 5. It is submitted by learned counsel of the appellant-Ganesha @ Ganesh that Ganesha himself belongs to the Scheduled Tribe Caste, therefore, the case under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 will not be made out. It is further submitted that the co-accused Shripat has already been granted bail by this Court vide order dated 18.12.2019 passed in Cr.A.No.10715/2019 under section 438 of Cr.P.C. Other co-accused Hartum Singh and Manmohan Sharma have already been granted bail under section 439 of Cr.P.C. vide order dated 26.6.2019 passed in Cr.A.No.4927/2019 and vide order dated 28.6.2019 passed in Cr.A.No.5328/2019 respectively. Learned counsel for the appellant submitted that investigation and trial will take its own time. The present appellant is innocent and he has not committed any offence. There is specific enquiry report made by the S.D.O.P in this case, wherein it is stated that no case is made out against the present appellant. Learned counsel for the appellant further submitted that in support of his arguments he has filed the documents Annexure A/3 and A/5 and also in the enquiry report it is speficially observed by the enquiry officer/S.D.O.P that no offence is made out against the present appellant and the present appellant is on same footing as that of co-accused Shripat, who has already been granted anticipatory bail on 18.12.2019, hence, prayed to grant anticipatory bail to the present appellant in the light of the judgment passed by the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 . 6. State of Bihar, (2014) 8 SCC 273 . 6. Learned counsel for the State has opposed the prayer made by learned counsel for the appellant and submitted that it is true that other co-accused persons Hartum Singh and Manmohan Sharma have been released on bail on filing the application under section 439 of Cr.P.C. and other co-accused person namely Shripat, who has been granted bail under section 438 of Cr.P.C., is only witness to the document, but the present appellant has actively participated in the alleged crime with Manmohan Sharma in selling out the land of the complainant and committed offence under section 420 read with section 120-B of IPC along with section 3 (1) (f) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, therefore, prayed that there is no parity with co-accused Shripat, hence, prayed to reject the anticipatory bail application of the appellant. 7. Heard learned counsel for the parties at length through VC and considered the arguments advanced by them and perused the record. 8. It is true that co-accused Shripat has been granted bail on 18.12.2019 under section 438 of Cr.P.C. and other co-accused persons namely Hartum Singh and Manmohan Sharma have been granted bail under section 439 of Cr.P.C. It is also apparent from the record itself that co-accused Shripat was only witness to the executed document, but the role of the present appellant as alleged by the prosecution is that he has sold out the land costing Crores of Rupees on a nominal cost with the help of Manmohan Sharma, therefore, it cannot be said that the present appellant is on the same footing as that of co-accused Shripat. Besides that, the parity is not the right of the accused rather it is the discretion of the Court to distinguish the facts of the case with regard to different co-accused of the case. In Nanha vs. State of UP, (1993) CriLJ 938 , the issue with regard to grant of bail on the basis of parity has been elaborately discussed, wherein it is observed as under: "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. The Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigation or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail." 9. In view of above, it is clear that while deciding bail application on the ground of parity, following factors are relevant for consideration: (i) Parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications. (ii) More materials placed before the Court with regard to the case, further developments in the investigation and other reasoned considerations may be considered as sufficient grounds for grant of bail. (iii) The Court 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 ignoring the relevant factors essential for grant of bail. (iv) 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. (v) If an order granting bail to an accused is not supported by reasons, the same cannot form the basis of granting bail to a co-accused on the ground of parity. 10. Thus, in view of the aforesaid discussion, looking to the facts and circumstances of the present case, considering the gravity of offence and on the basis of allegations and material available on record, without commenting on the merits of the case, in the considered opinion of this Court, it would not be appropriate to allow this Criminal Appeal. It is, accordingly, rejected.