Jharkhand High Court

Mithun Murmu vs The State Of Jharkhand on 19 February, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Appeal (DB) No. 2094 of 2023
Mithun Murmu                                             .....     Appellant
                               Versus
The State of Jharkhand                                   .....   Respondent
                              ---------

CORAM: Hon'ble Mr. Justice Sujit Narayan Prasad Hon'ble Mr. Justice Arun Kumar Rai

---------

For the Appellant      : Mr. Lukesh Kumar, Advocate
                         Mr. Faiyaz Alam, Advocate
                         Ms. Aarti Kumari, Advocate
                         Mr. Sidharth Sudhanshu, Advocate
For the Respondent     : Mrs. Lily Sahay, APP
                              ---------
07/ Dated: 19.02.2024:

The instant appeal filed under Section 21 of the National

Investigation Agency Act, is directed against the order dated 13.09.2023

passed by the learned Additional Sessions Judge 1st, Godda in S.T. No. 99

of 2023, by which the prayer for regular bail of the appellant in connection

with Sunderpahari P.S. Case No. 72 of 2015, corresponding to G.R. No.

1856 of 2015, registered under Sections 147, 148, 149, 353, 120B, 307,

302, 124A of the IPC, under Section 25(1-b), 26, 27, 35 of Arms Act,

Section 17 of C.L.A. Act and subsequently added Section 16/20 of the

UAPA Act and Sections 121, 121(A) of the IPC, has been rejected.

2. Learned counsel appearing on behalf of appellant has submitted that

on the basis of the over hearing of the name of the appellant by the police

personnel he has been implicated in this case and as such his name has also

mentioned in the FIR along with the other co-accused person.

Learned counsel has further submitted that co-accused namely

Mithlesh Mandal @ Jagdish Mandal @ Mochu @ Motu has been granted

bail vide order dated 29.11.2022 by a coordinate Bench of this Court in Cr.

Appeal (DB) No. 941 of 2022, therefore the case of the appellant is also at

par with the case of the co-accused person.

3. Mr. Lukesh Kumar, learned counsel appearing for the appellant on

the basis of aforesaid ground has submitted that impugned order therefore

deserves to be interfered with.

4. Mrs. Lily Sahay, learned APP appearing for the respondent State

opposed the prayer for bail by taking a ground that the name of the

appellant has surfaced in FIR by the informant (officer-in-charge

Sunderpahari PS) in his self statement. Moreover, two police personnel had

died. One of the police constables died on the spot and another died on way

to the hospital.

The learned APP has further submitted that so far as the parity is

concerned the case of the appellant is not at par with the case of the co-

accused and since the coordinate Bench has taken into consideration that

the said co accused is not named in the FIR but the present appellant is

named in the FIR.

5. This Court has heard the learned counsel for the parties, gone across

the case diary, the counter affidavit filed on behalf of the State, including

the First Information Report.

This Court after considering the aforesaid facts including the ground

of parity is of the view that law is well settled that the principle of parity is

to be applied if the case of the fact is exactly similar then only the principle

of parity will be taken into consideration while passing the order but if

there is difference in between the facts then principle of parity is not to be

applied.

6. The learned counsel for the appellant has taken the ground of parity

but in the aforesaid context it may be noted that parity is not the law, rather

the principle of parity is based on the guarantee of positive equality before

law enshrined under Article 14 of the Constitution of India and while

applying the principle of parity, the Court is required to focus upon the role

attached to the accused whose application is under consideration.

7. Reference in this regard may be taken to the judgment rendered by

the Hon'ble Apex Court in Tarun Kumar Versus Assistant Director

Directorate of Enforcement reported in 2023 SCC OnLine SC 1486,

wherein it has been held as under:

"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co- accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.

8. It is further settled connotation of law that Court cannot exercise its

powers in a capricious manner and has to consider the totality of

circumstances before granting bail and by only simple saying that another

accused has been granted bail is not sufficient to determine whether a case

for the grant of bail on the basis of parity has been established. Reference

in this regard may be taken from the judgment as rendered by the Hon'ble

Apex Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai

Makwana, (2021) 6 SCC 230, wherein, it has been held as under:

"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history- sheeter, it was imperative on the part of the High Court to

scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.

26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986], [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988], the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."

9. The main ground has been taken on behalf of appellant that the case

of the appellant is exactly similar to that of co-accused namely Mithlesh

Mandal @ Jagdish Mandal @ Mochu @ Motu who has been granted bail

by this Court vide order dated 29.11.2022 in Cr. Appeal (DB) No. 941 of

2022.

10. Since in the instant case the issue of parity has been raised as such

this Court taken into consideration the aforesaid settled position of law,

thinks fit to refer herein distinguishable facts in the case of present

appellant to that the case of co-accused namely Mithlesh Mandal @

Jagdish Mandal @ Mochu @ Motu, who has been granted bail by this

Court vide order dated 29.11.2022 in Cr. Appeal (DB) No. 941 of 2022.

(i) It is evident from the perusal of the record that the co-accused

namely Mithlesh Mandal @ Jagdish Mandal @ Mochu @

Motu has not been named in the FIR but the present appellant

is named accused in the FIR and there is specific accusation

against that the present appellant along with other accused

persons were shouting slogan against police administration

and started firing on police party with intention to kill them.

(ii) From the paragraph 97 of the case diary, it is evident that the

name of appellant of Cr. Appeal (DB) No.941 of 2022 in the

instant case has transpired on the basis of his own confessional

statement but the present petitioner is arrayed as a main

assailant with categorical accusation.