Dal Singar Singh S/O Harish ... vs State Of U.P. Thru Prin. Secy. ...
2022 Latest Caselaw 2697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4108 of 2022
 
Applicant :- Dal Singar Singh S/O Harish Chandra Singh (Third Bail)
 
Opposite Party :- State Of U.P. Thru Prin. Secy. Ministry Of Home
 
Counsel for Applicant :- Ajay Singh,Sameer Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Ajay Singh, learned counsel for the applicant and Sri Balkeshwar Srivastava, learned A.G.A.

Sri Balkeshwar Srivastava, learned AGA has filed counter affidavit and Sri Ajay Singh has filed rejoinder affidavit, both the affidavits are taken on record.

This is the third bail application. First bail application was rejected on 02.08.2018 by Hon'ble Anant Kumar, J. (since retired). Second bail application was rejected on 03.05.2019 by Hon'ble Anant Kumar, J. (since retired). The second bail application was rejected for the reason that no new ground was shown.

The present applicant has assailed the aforesaid bail rejection orders before the Hon'ble Apex Court by filing Special Leave Petition (Criminal) Diary No(s).25468/2019 wherein the Hon'ble Apex Court vide order dated 01.08.2019 dismissed the aforesaid SLP giving liberty to the present applicant to renew his bail application after framing of charges. Relevant para of the aforesaid order is as under:-

"However, the petitioner is at liberty to renew his bail application after framing of charges."

Attention has been drawn towards Annexure No.RA-1 of the rejoinder affidavit, which is an order dated 18.02.2020 whereby the learned trial court has framed the charges. Therefore, Sri Ajay Singh has submitted that in compliance of the direction of the Hon'ble Apex Court, his third bail application may be heard and disposed of since charges have been framed by the learned trial court after the order being passed by the Hon'ble Apex Court.

Sri Ajay singh has submitted that he is conscious about the fact that he cannot take any ground in his third bail application which could have been taken at the time of rejection of first and second bail applications, therefore, besides the aforesaid liberty being given by the Hon'ble Apex Court, he is taking two more grounds, which can be taken at this stage i.e. (i) the present applicant is in jail since 28.02.2017 in Case Crime No.0081 of 2017, under Sections 302, 307, 394 & 411 IPC and more than five years' period has passed since he is in jail and there is no possibility to conclude the trial in near future inasmuch as only material fact witnesses/ eye witnesses have been examined by the learned trial court, to be more precise, out of out of total 28 prosecution witnesses, only three fact/ material witnesses have been examined, therefore, in view of the dictum of the Hon'ble Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021, the present bail application may be heard and disposed of; (ii) after rejection of first and second bail applications of the present applicant on 02.08.2018 and 03.05.2019, co-accused Sandeep Singh Bais, who has been attributed the role of firing upon the deceased, has been granted bail by this Court on 25.04.2022 in Criminal Misc. Bail Application No.8900 of 2021, therefore, this ground may be considered a fresh ground in terms of order of the Division Bench of this Court in re; Nanha S/O Nabhan Kha vs. State of U.P., reported in 1993 CriLJ 938. He has further submitted that no identification parade has been conducted and criminal history of the present applicant has been explained in para-48 of the bail application.

Since charge sheet has already been filed and the trial is going on wherein there is no complaint of any kind whatsoever against the applicant or from his side regarding non-cooperation to the trial proceedings, rather the trial is being cooperated properly from his side and all relevant/ eye witnesses have already been examined, therefore, there is no apprehension of affecting the trial, so the applicant may be released on bail. If the applicant is released on bail, he shall not affect or influence the trial in any manner whatsoever and shall cooperate with the trial proceedings and shall abide by all terms and conditions of the bail order.

Per contra, Sri Balkeshwar Srivastava, learned AGA, has submitted that this is the third bail application, therefore, the present applicant should not be granted bail and any direction to expedite the trial may be issued. However, on being confronted on the point that after framing of charges, the applicant could have filed his bail application in compliance of the direction of the Hon'ble Apex Court; all relevant/ eye witnesses have been examined; the applicant is in jail for more than five years; there is no possibility to conclude the trial in near future and after rejecting his first and second bail applications on 02.08.2018 and 03.05.2019 respectively, the co-accused who has been attributed the role of firing has been granted bail on 25.04.2022, Sri Balkeshwar Srivastava, learned AGA, has submitted that the aforesaid fact being matter of record, therefore, he has nothing to say.

Having considered the fact that the present bail application has been filed after framing of charges pursuant to the direction of the Hon'ble Apex Court dated 01.08.2019, all three fact/ eye witnesses have been examined by the learned trial court and no identification parade has been conducted as both the aforesaid grounds have been considered in the bail order of co-accused Sandeep Singh Bais in his fourth bail application and the co-accused Sandeep Singh Bais has been granted bail after rejection of first, second and third bail applications, therefore, I find that in view of the aforesaid ground, this is a fit case for bail.

It would be apposite to consider the dictum of the Hon'ble Apex Court in re; K.A. Najeeb (supra), Paras Ram Vishnoi (supra) and the dictum of Division Bench of this Court in re; Nanha (supra). The Division Bench of this Court in re; Nanha (supra) has considered the question as to whether any accused may be entitled for bail in his/her subsequent bail application, if after rejection of his/her bail, the other co-accused persons have been granted bail. In para-1 of the judgment, the aforesaid question has been indicated, which reads as under:-

"1. In the third bail application moved by the petitioner for bail in case Crime No. 53 of 1989 under Section 302, IPC of P.S. Ganj, district Rampur Hon'ble N.L. Ganguli, J. has referred the following question to a larger Bench for an authoritative pronouncement:--

"Whether an accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon'ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted."

While replying the aforesaid question, the Devision Bench of this Court in re; Nanha (supra) has observed in paragraphs 53 & 58 as under:-

"53. There are large number of cases of this Court in which the question of parity in the matters of bail has been considered earlier and the weight of judicial authority is in favour of the principle of parity being followed. In the case of Hadi v. State, 1986 Allahabad Criminal Cases 390 Hon'ble Parmeshwari Dayal, J. bailed out the accused on the ground that co-accused had been bailed out earlier. In another case of Sanwal Das Gupta v. State of U.P., 1986 Allahabad Criminal Cases 79, D.N. Jha, J. observed that where bail was granted to a co-accused then even the Magistrate can admit co-accused to maintain parity. In the case of Ram Roop Vs. State of U.P. 1987 Criminal Rulings 30, this Court observed that a co-accused having similar role having been granted bail another co-accused should also be granted bail. In the case of Ali Hussain v. State of U.P., 1990 U.P. Criminal Rulings 93, Hon'ble S.K. Dhaon, J. placed reliance on the Supreme Court's case of Kallu (supra) and granted bail on the ground of parity. In a unreported decision of this Court in Criminal Misc. Bail Application No. 1360 of 1987 Rai Munna v. State of U.P. Hon'ble G.P. Mathur, J. granted bail on the ground of parity though the Hon'ble Judge clearly observed that he was still of the opinion that the applicant was not entitled to bail on merits, but, however, as his case was not distinguishable from the case of co-accused the bail was granted on the ground of parity. In his judgment in Sobha Ram's case (supra) Hon'ble V.N. Mehrotra, J. has considered some more unreported decisions of this Court in which bail has been granted on the ground of parity. I respectfully agree with the view of Hon'ble V.N. Mehrotra, J.

58. The word 'parity' means the state or condition being equal or on a level; equality; equality of rank or status (See Shorter Oxford English Dictionary 1936 Ed.). In other words it means being placed at the same footing. All the accused of a case always do not stand on the same footing. While considering bail of different accused the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. The case of Cap. Jagjeet Singh (supra) is an illustration wherein the Supreme Court distinguished the case of Capt. Jagjeet Singh on the ground that he was in touch with foreign agency and leaking out secrets. The Supreme Court in the case of Gur Charan Singh v. Delhi Administration, AIR 1978 SC 179 : (1978 Cri LJ 129) laid down that the considerations for grant of bail are inter alia the position and status of the accused with reference to the victim and the witnesses; likelihood of the accused; fleeing from justice; of repeating offence; of jeopardising his own life, being faced with grim prospect of possible conviction in the case; of tampering with witnesses; and the like. These are additional factors which are to be judged in the case of individual accused and it may make the cases of different accused distinguishable from each accused. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands on identical footing."

The aforesaid question was replied in favour of the accused in para-61 of the case in re; Nanha (supra), which reads as under:-

"61. My answer to the points referred to is that if on examination of a given case it transpires that the case of the applicant before court is identical, similar to the accused, on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. (Exceptional cases as discussed above apart). As regards the second part of the question, answer is that it is not at all necessary for an accused to state in his bail application that the bail application of a co-accused has been rejected previously."

Therefore, in view of the aforesaid facts and circumstances, the present bail application is allowed. It is made clear that this Court has not entered into merits of the case.

Let applicant- Dal Singar Singh involved in Case Crime No.0081 of 2017, under Sections 302, 307, 394 & 411 IPC, Police Station ? Kamrauli, District ? Amethi be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v)The applicant shall not leave India without previous permission of the court.

Before parting with, it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest.

[Rajesh Singh Chauhan,J.]

Order Date :- 13.5.2022 /RBS/-