Matlub vs State Of U.P.
2023 Latest Caselaw 24911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:178558
 
Court No. - 69
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53943 of 2022
 

 
Applicant :- Matlub
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anil Kumar Mishra,Gaurav Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Gaurav Singh, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A-I for the State and perused the material on record.

3. The present bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Matlub, seeking enlargement on bail during trial in connection with Case Crime No.540 of 2021, under Sections 147, 148, 149, 307, 302 IPC, Police Station Deoband, District Saharanpur.

4. This is a second bail application. The first bail application of the applicant being Criminal Misc. Bail Application No.2584 of 2022 was rejected by this Court vide order dated 27.5.2022.

5. The sole ground as argued by learned counsel for the applicant is that co-accused Aseel has been granted bail by a co-ordinate Bench of this Court vide order dated 11.10.2022 passed in Criminal Misc. Bail Application No.35654 of 2022 (Aseel Vs. State of U.P.), copy of the said order has been annexed as annexure no. 2 to the 2nd supplementary affidavit dated 7.2.2023. It is argued that the first bail application of the applicant was rejected on 27.5.2022 after which the co-accused Aseel has been granted bail vide order dated 11.10.2022 and as such the applicant is entitled to be released on bail on the ground of parity. Further while placing Annexure No.S-A-2 to the Supplementary Affidavit dated 27.11.2022 and paragraph no.4 of the same, it is argued that although the said para states of one case against the applicant but as a matter of fact he is involved in three other cases in which he has been granted bail and the orders are annexed at page 10-A, 10-C and 11 of the said supplementary affidavit which are Case Crime No.350 of 2017, under Sections 147, 148, 149, 307 IPC, Police Station Deoband, District Saharanpur in which he has been granted bail vide order dated 18.10.2017 passed by Sessions Judge, Saharanpur in Bail Application No.2887 of 2017 (Matlub Vs. State) and further Case Crime No.351 of 2017, under Sections 3/5/8 Cow Slaughter Act, Police Station Deoband, District Saharanpur in which he has been granted bail vide order dated 18.11.2017 passed by Addl. Sessions Judge, Court No.2, Saharanpur in Bail Application No.2956 of 2017 (Matlub Vs. State) and further Case Crime No.543 of 2021, under Sections 3/5/8 Cow Slaughter Act, Police Station Deoband, District Saharanpur in which he has been granted bail vide order dated 29.11.2021 passed by Addl. Sessions Judge, Court No.3, Saharanpur in Bail Application No.4547 of 2021 (Matlub Vs. State). It is argued that as such the said three criminal cases stand duly explained and since the applicant is in jail since 21.10.2021, he may be granted bail.

6. Per contra, learned State counsel vehemently opposed the prayer for bail and argued that the first bail application of the applicant was rejected on merits by a detailed order by this Court vide order dated 27.5.2022. On the own showing of the applicant, he is involved in three other cases. The involvement of the applicant in the present case goes to show that he has breached the conditions of bail granted in the earlier cases as he has involved himself repeatedly in criminal offences. It is further argued that although co-accused Aseel has been granted bail but the applicant cannot claim benefit of the same as parity is not binding upon the Court, as such the bail application be rejected.

7. After having heard learned counsels for the parties and perusing the record, it is evident that the present bail application is the second bail application. The first bail application was rejected by this Court vide order dated 27.5.2022. The said order reads as under:-

"Heard Sri Pavan Kumar Mishra, learned counsel for the applicant, Sri Ankit Srivastava, learned Brief Holder for the State and perused the material on record.

This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Matlub, seeking enlargement on bail during trial in connection with Case Crime No. 540 of 2021, under Sections 147, 148, 149, 307, 302 I.P.C., registered at P.S. Devband, District Saharanpur.

Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the F.I.R. was lodged on 5.9.2021 by Ombir, S.I. of Police Station Devband, District Saharanpur although naming the applicant and three other persons as accused along with two unknown persons but naming of the applicant is on the basis of disclosure of his name by co-accused Aseel who was arrested from the spot. It is argued that in the present matter Jeeshan son of Mohsin received injury and died. It is argued that the said person was from the side of the accused persons who received fire from the firing done from the side of accused itself and, in so far as the police personnels are concerned, no one has received any injury which is also the case of the prosecution. It is argued that as such implication of the applicant in the present case is false and without any evidence. There is no recovery of any incriminating material either from the possession or pointing out of the applicant. It is argued that the applicant was previously involved in two cases which have been disclosed and explained in para 25 and 26 of the affidavit and there is one case lodged after the present case which been disclosed and explained in para-27 of the affidavit. The applicant is in jail since 21.10.2021.

Per contra, learned State counsel opposed the prayer for bail vehemently and argued that the police team raided the place where cow slaughtering was going on and at the time of raid, there was firing from the side of the accused persons. The police found 250 kgs of cow beef and one white coloured skin along with other materials used for slaughtering. It is argued that from own showing of the applicant it is clear that there had been firing on the raiding police party in which one of the accused persons received injury and died and as such, looking to the facts and circumstances of the case, the pryer for bail be rejected.

After having heard learned counsels for the parties and perusing the record, it is evident that police team has raided the place from where one person namely Aseel was arrested and implication of the application in the present matter was disclosed by him. Beef of around 250 kgs, one white coloured skin and other materials allegedly used for slaughtering were recovered. The case of the accused/applicant is of firing on police party which accidentally hit the deceased Jeeshan who is one of the members of the party of the accused persons.

Looking to fact and circumstances of the case, nature of incident and also the fact that the accused had resorted to firing at the police party, I do not find it a fit case to release the applicant on bail.

Accordingly, the bail application is rejected."

8. The applicant is involved in three other criminal cases in which he is stated to be on bail. The applicant being involved in the present case goes to show that there has been repeated instances of his involving in criminal activity. In so far as parity is concerned, the same cannot be the sole ground for granting of a bail. The parity may have it's persuasive value but the same cannot be binding on the Court. This Court initially rejected the bail application of the applicant after which the bail application of co-accused has been granted.

9. In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh and another, decided on 12.3.2001, the Hon'ble Apex Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court it observed that:-

"The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused-respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier."

The Apex Court in the aforesaid case has further observed:-

"Suffice it to say that for a serious charge where three murders have been committed in broad day light, the High Court has not applied its mind to the relevant materials, and merely because some of the co-accused, whom similar role has been ascribed, have been released on bail earlier, have granted bail to the present accused respondents. It is true that State normally should have moved this Court against the order in question, but at the same time the power of this Court cannot be fettered merely because the State has not moved, particularly in a case like this, where our conscience is totally shocked to see the manner in which the High Court has exercised its power for release on bail of the accused respondents. We are not expressing any opinion on the merits of the matter as it may prejudice the accused in trial. But we have no doubt in our mind that the impugned order passed by the High Court suffers from gross illegality and is an order on total non-application of mind and the judgement of this Court referred to earlier analysing the provisions of sub-section (2) of section 439 cannot be of any use as we are not exercising power under sub-section (2) of section 439 Cr.P.C."

10. In the case of Ramesh and others Vs. State of U.P. (Criminal Appeal No.528 of 1998 in Criminal Misc. Application No.4581 of 2005(B) of Vishram) decided on 1.1.2010, the Division Bench of this Court held that parity cannot be the sole ground for granting bail. It is relevant to reproduce relevant part of the case of Ramesh and others (supra), the Division Bench of this Court has held as under:-

"In para 17 in the case of Chander @ Chandra Vs. State of U.P. (1998 U.P. Cr.R. 263), it was held that:-

"The grant of bail is not a mechanical act and principle of consistency cannot be extended to repeating a wrong order. If the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle, 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."

11. In the case of Salim Vs. State of U.P.: 2003 ALL. L. J. 625, this Court has held that parity can not be the sole ground for bail.

12. Again in the case of Zubair Vs. State of U.P.: 2005(52) ACC 205, this Court observed that there is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. In view of the aforesaid discussion, we are of the considered opinion that parity cannot be the sole ground for granting bail."

13. In the case of Mauji Ram vs. State of U.P. and another reported in (2019) 8 SCC 17, Hon'ble Apex Court has held that it must appear from perusal of the order that the Court has applied its mind to the relevant facts in the light of material filed by the prosecution at the time of consideration of bail application. Paragraph 13 of the judgment in Mauji Ram (supra) is being reproduced as under:-

"13. Time and again this Court has emphasized the need for assigning the reasons while granting bail (see Ajay Kumar Sharma vs. State of U.P. & Ors., (2005) 7 SCC 507, Lokesh Singh vs. State of U.P. & Anr., (2008) 16 SCC 753 & Dataram Singh vs. State of U.P. & Anr., (2018) 3 SCC 22). Though it may not be necessary to give categorical finding while granting or rejecting the bail for want of full evidence adduced by the prosecution as also by the defence at that stage yet it must appear from a perusal of the order that the Court has applied its mind to the relevant facts in the light of the material filed by the prosecution at the time of consideration of bail application. It is unfortunate that neither the law laid down by this Court, nor the material filed by the prosecution was taken note of by the High Court while considering the grant of bail to the respondents."

14. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.

(Samit Gopal, J.)

Order Date :- 15.9.2023

Gaurav Kuls