Amin Khan Amanullah Khan And Anr. vs State Of Maharashtra
2003 Latest Caselaw 447 Bom

ORDER

1. Heard the learned advocate for the applicant and the Government Advocate. Perused the records.

2. This is an application for bail by the applicant Amin Khan, being the accused No. 1, and who has been convicted for the offence punishable under Section 302 of Indian Penal Code, along with one more accused being the accused No. 11, hereinafter called as "the appellant No. 2", in the Sessions Case No. 41/97 and 71/99 wherein nine other persons were also prosecuted.

3. The case of the applicant is that the applicant along with others was booked for the offences allegedly committed by him and others punishable under Sections 147, 148, 149, 307, 302 read with 34 of Indian Penal Code in respect of Crime No. 102/97 registered with the Police Station at Nandura. According to the applicant the above said registration of the crime was on account of two incidents dated 1-6-1997 and 31-5-1997 and they were pertaining to the dispute about the management of Mohalla Mosque. It is further the case of the applicant that the members of both the groups were released on bail and they remained on bail during the trial before the Sessions Court and it is only after the conviction, the applicant has been sent to jail in pursuance of the judgment by the learned Sessions Judge. It is further the case of the applicant that he is entitled for bail on the ground of parity inasmuch as the circumstances in which the alleged offence is said to have been committed by the applicant as well as by the appellant No. 2 being similar in nature and the appellant No. 2 having been released on bail, the applicant is also entitled to be released on bail. While justifying the case of the applicant for bail, the learned advocate for the applicant has placed reliance in the decision of the Full Bench of the Kerala High Court in Uthaman and Ors. v. State of Kerala reported in 1983 Cri.L.J. 74 and contended that mere conviction by the Sessions Court would not lead to presumption that the accused in fact has committed the alleged offence; the decision of the Apex Court in the matter of Bhagwan Rama Shinde v. State of Gujarat reported in 7999 Cri.L.J. 2568 has been relied upon while contending that when there is no possibility of hearing the appeal expeditiously, the applicant should be directed to be released on bail and thirdly in decision of the Allahabad High Court in the matter of Nanha v. State of U. P. reported in 7995 Cri.L.J. 938 while submitting that when co-accused are allowed to be released on bail, the applicant is also entitled to bail on parity.

4. It is to be noted that the applicant herein along with the appellant No. 2 had filed an application for bail along with the appeal against conviction and after hearing the parties, the same came to be dismissed on 14-5-2002 as far as the applicant is concerned, while it was allowed in case of the appellant No. 2. While dismissing the said application of the applicant, it was observed that the applicant has been convicted under Section 302 of Indian Penal Code and the said conviction is on the basis of evidence of eye witnesses in the matter and, therefore, the Court was not inclined to release the applicant on bail. Undoubtedly while dismissing the application for bail on the part of the applicant, the appellant No. 2 who happened to be the original accused No. 4 was ordered to be released on bail. However, such an order in favour of the appellant No. 2 was passed by taking into consideration the fact that he was convicted under Section 302 of Indian Penal Code only by taking aid of the provisions of Section 149 of the Indian Penal Code. Apparently, therefore, the circumstances in which the bail was granted to the appellant No. 2 were totally different from the one under which the bail was refused to the applicant herein. Besides the Court has also taken a note of the fact that the conviction of the applicant was based on the evidence of eye witnesses.

5. Perusal of the judgment passed by the Sessions Court while convicting the applicant also discloses that the clothes of the accused which were seized at the time of his arrest, were having blood stains and the Chemical Analyser's report disclosed the blood stains to be of the human blood with group "A". Similarly the knife which was recovered at the instance of the appellant, had blood stains with Group "A". The Judgment further discloses in spite of opportunity being given at the time of examination under Section 313 of Criminal Procedure Code the applicant did not come out with any explanation as regards said blood stains on the clothes which were seized from him. It was also not the case of the applicant that he had suffered any injury.

6. The decision of Allahabad High Court in Nanha's case is to the effect the parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent 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 before it, further developments in the investigations or otherwise and other different considerations, can be sufficient grounds for releasing the applicant on bail. However, the case of an accused has to be examined individually. Simply because the co-accused has been granted bail, it cannot be the sole criteria for granting bail to the main accused. Even at the stage of second or third bail application, the Court has to examine whether on facts, the case of the applicant before the Court is distinguishable from other released co-accused and the role played by the applicant is such which may disentitle him to bail. It has further ruled that if bail is granted to one co-accused, the other co-accused whose case stands on the same footing is entitled to bail. It cannot be said that it is open to different Judges to reject or grant bail to accused even if their cases stand on same footing. The High Court is one Court and each Judge is not a separate High Court. It will be unfortunate if the High Court delivers inconsistent verdicts on identical facts. The public, whose interests all judicial and quasi judicial authorities ultimately have to serve, will get a poor impression or a Court which delivers contrary decisions on identical facts. Hence for the sake of judicial uniformity and nondiscrimination it is essential that if the High Court grants bail to one co-accused it should also grant bail to another co-accused whose case stands on the same footing.

7. We are in respectful agreement with the ruling of the Allahabad High Court on the point that mere parity cannot be the sole ground for granting bail and each case of the accused has to be examined individually and that in case the bail is granted to one co-accused, there should not be discrimination in case of the application for bail by other accused where the cases of both the accused stand on the same footing. We, however, are not agreeable to accept the contention that the bail applications are to be treated bearing in mind the impression that the public may have about the High Court. The bail applications are to be considered solely on the basis of the materials on record in each case and mere public impression cannot be consideration for the grant or refusal of the bail.

8. As regards the point of parity, it is to be seen that in that case in hand this Court has already arrived at a finding in the matter of disposal of the bail application that the conviction of the applicant by the Sessions Court under Section 302 of Indian Penal Code is on the basis of evidence of eye witness and the conviction of the appellant No. 2 under Section 302 is by taking aid of the provisions of law contained in Section 149 of Indian Penal Code. Being so, by no stretch of imagination it can be said that the case of the applicant herein stands on the same footing that of the appellant No. 2 in the main appeal to whom the bail has been already granted by this Court by its order dated 14-5-2002 and, therefore, there is absolutely no case for the applicant to claim parity with the case of the appellant No. 2 in the main appeal.

9. The Full Bench of the Kerala High Court in the case of Uthaman has held that "we found no warrant for any dogmatic approach that when once a person accused of an offence under Section 302 of the Indian Penal Code has been convicted and sentenced to life imprisonment, the appellate Court is not to enlarge the accused on bail pendente lite. To state the proposition in such categorical terms would be to self-impose a restriction on the exercise of power by the appellate Court under Section 389 read with Section 439(1) of the Criminal Procedure Code. That will be to read into the power of the High Court a limitation not warranted by the provisions of the Criminal Procedure Code. Based on this observation, it was sought to be argued on behalf of the applicant that there is no presumption that the accused is guilty of the offence for which he was charged and convicted by the Court below. In that regard further ruling of the Full Bench of the Kerala High Court which has been brought to our notice reads thus :

"In determining whether there are reasonable grounds for believing that the accused has committed an offence punishable with death or life imprisonment the Court looks into materials then available to it, whether it be at the stage of investigation or at the stage of trial. Such would be the case even in the appeal. Merely because the appeal is against a conviction there should not be a presumption that the accused has committed the offence as that would be to foreclose on the plea of the accused that on the materials available there is no justification to refuse bail. Inasmuch as the learned Judges of the Division Bench have categorically indicated that a presumption of existence of reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment would arise by reason of a conviction, we must respectfully disagree. That is not a correct statement of the law. To that extent the dictum laid down in the Division Bench decision requires to be read as modified."

Apparently the Full Bench of the Kerala High Court was dealing with the case where the Division Bench had sought to lay down the proposition of law to the effect that "a presumption of existence of reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment would arise by reason of a conviction". To arrive at any such proposition of law, while considering the application for bail is different from considering the materials available before the Court in the form of conviction of such person, being one of the impediment for granting bail. It is one thing to say that the conviction leads to presumption about the truthfulness of the commission of the offence by the accused and another thing to say that the findings arrived at by the Court below on application of mind to the materials on record and on such appreciation thereof necessarily to be taken into consideration while deciding the application for bail after conviction of the accused. It is well settled law that the applications for bail after conviction cannot be considered on the same criteria as they are to be considered before conviction. Undoubtedly the materials which are available to the Court for the purpose of its consideration before conviction cannot be the same as those available after conviction, the basic difference being that before conviction the papers which are made available are untested materials in the sense that the statements of witnesses are not being made subject to test of cross-examination whereas after conviction the Court has a benefit of analyzing the materials in the form of statements of the witnesses which are already subjected to test of cross-examination and further that the analysis of such materials by the Court below bearing in mind such statements being put to the test of cross-examination. Therefore, the judgment of conviction cannot be totally discarded while considering the application for bail after conviction.

10. The Apex Court in Bhagwan Rama Shinde v. State of Gujarat reported in 7999 Cri.L.J. 2568 has held that when a convicted person is sentenced for a fixed period of imprisonment and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances and where the High Court is not inclined to hear the appeal expeditiously the sentence passed on appellants can be suspended on some stringent conditions. It is to be noted that the said ruling was given by the Apex Court in the facts and circumstances which are disclosed from the para 2 of the decision of the Apex Court and the same read thus :

"This is a case where appellants have been convicted by the trial court of the offence under Section 392 read with Section 397 and each of them was sentenced to rigorous imprisonment for 10 years. They filed an appeal before the High Court of Gujarat and moved for suspension of sentence, but that was not allowed. At a later stage they again moved for suspension of sentence and that too was dismissed by the impugned order. Unfortunately, when they made a motion for having their appeal expedited that also was declined by the High Court on the premise that the High Court is having older appeals on the board."

It was further observed that :

"When a convicted person is sentenced to fixed period of sentence and when he filed appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of the appeal would be an exercise in futility by efflux of time. When the appellate Court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate Court must bestow special concern in the matters of suspending the sentence. So as to make the appeal right meaningful and effective. Of course appellate Courts can impose similar conditions when bail is granted."

11. It is to be noted that the offence under Section 392 of Indian Penal Code, the maximum punishment which can be imposed is rigorous imprisonment for 10 years and fine and in case of offence under Section 397 Indian Penal Code, the maximum punishment can be imposed is rigorous imprisonment for not less than 7 years whereas maximum punishment which can be imposed in case of conviction under Section 302 of Indian Penal Code is either death or life imprisonment and fine. The Apex Court while observing that "when the High Court is not inclined to hear the appeal expeditiously" has clearly ruled that that the same is in relation to the cases wherein convicted persons are sentenced to fixed period of imprisonment. The decision is not on the point where the conviction is for life. Any decision either of the Apex Court or the High Court cannot be read as a Statute. In order to understand the ratio of the decision, one has to consider the facts of the case, points for consideration and ruling thereon. This has been well explained in different decisions of the Apex Court including in the matter of Union of India and Ors. v. Dhanwanti Devi and Ors., . It is clearly ruled therein that the decision is what it decides and not what follows from it. Therefore, the ruling which has been given by the Apex Court in the case where a person is punished for fixed period of imprisonment, cannot be applied to a case where the conviction is not for a fixed period of imprisonment but for a life. Being so, the decision of the Apex Court in Bhagwan Rama Shinde's case cannot be of any help to the applicant to contend that since the High Court will not be able to take up the matter expeditiously, therefore, the applicant is entitled for bail. Whether the High Court will be able to take up the matter for hearing expeditiously or not is a different matter as there is no such move as yet on the part of the applicant to get an order for expeditious hearing of the appeal in the case in hand.

12. As already observed above, we find no parity in the case of the applicant with that of the appellant No. 2 and therefore, there being no case made out for the grant of bail to the applicant in the facts and circumstances of the case, the application is hereby dismissed.