Irshad Alias Guddu vs State Of Uttarakhand
2021 Latest Caselaw 1319 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              2nd Bail Application No. 157 of 2020
Irshad Alias Guddu                                 ...      Applicant


                                      Vs.
State of Uttarakhand                               ...      Respondent
Advocates :    Mr. Lokendra Dobhal, Advocate, for the applicant.
               Mr. Dinesh Chauhan, Brief Holder, for the State.


Hon'ble Sharad Kumar Sharma, J.

This is the Second Bail Application, as the First Bail Application No. 847 of 2020, which was preferred by the applicant for his alleged involvement in the commission of offence, as registered against him by way of Case Crime No. 258 of 2019, for the offences under Sections 420, 409, 466, 467, 468, 471 and 120-B IPC, which was registered at Police Station Jaspur, District Udham Singh Nagar, was rejected by this Court on 10.07.2020.

2. The Second Bail Application has been preferred by the applicant primarily on the following grounds:-

(i) He has claimed the parity, with the other co-accused persons, who have already been granted bail by the coordinate Bench of this Court.

(ii) He has also claimed parity to the effect that, even the applicant, who was shown to be indulged in the commission of an identical offence in other connected matters and was carrying a history of six such similar cases, has been granted bail in some of the cases by the coordinate Bench of this Court, hence he deserves to be granted bail hereto in this case.

3. He further contends that, since the charge sheet has been submitted by the I.O. on 29.05.2020, and the charge has not yet been framed by the Trial Court, hence, he cannot be kept in custody for an indefinite period, as he is languishing in jail since 01.11.2019, for his alleged involvement in the commission of an offence of usurpation of the scholarship money, which, under the Welfare Scheme of the State was otherwise entitled to be appropriately disbursed to the Scheduled Caste and Scheduled Tribes students, taking their education, who were the beneficiaries of it.

4. The aspect and claim of parity is not a right. Parity depends upon the wisdom and also on an interpretation given by each and individual Court and, particularly, in the present case, where the parity has been sought by the applicant, by referring to the bail orders, granted to the applicant himself in other identical cases, which were registered against him. The coordinate Bench of this Court has not considered the aspect about the previous history of six cases of the present applicant, which had shown his involvement in commission of identical nature of offences of scholarship scam, which is a social menace, which was later on revealed in pursuance to an order which was passed in a Public Interest Litigation, by the Division Bench of this Court, by the special investigation team, who submitted his report and later on it had reflected that the applicant has acted, as a mediator in fetching the students to be artificially shown to be admitted in their respective colleges for the purposes of a wrongful extraction of financial assistance, provided under a welfare scheme, by the State Government, to the oppressed class of the community.

5. The aspect of parity, I am not inclined to interfere, for the reason being that, firstly, because the claim of parity is not a right

and secondly, the aspect of the criminal history of the applicant has not been taken into consideration. As far as this Court is concerned, while exercising my discretionary jurisdiction, once this Court has been made conscious of the fact by the objection, which has been filed by the learned Government Advocate, by bringing on record the detail and the history of six similar cases, as referred in para 9 of the objection, I am of the view that a corrupt person, who is shown to be involved in commission of offences, it shows a mental bent of mind of an individual and such type of an accused person cannot be granted any parity. Hence, on that aspect itself, I decline to grant parity to the applicant.

6. The learned counsel for the applicant has referred to certain authorities, on which he has placed reliance i.e. as reported in 2002 (44) ACC 675, Akhil All Jehangir Ali Sayyed Vs. State of Maharashtra, particularly, he has drawn the attention of this Court to the contents of paragraphs 4 and 5 of the said judgment, which read as under:-

"4. Nonetheless, we are inclined to bring down the offence from Section 302 to Section 304, part I of the IPC. We do so. We are told that appellant has been in jail for nearly ten years by now. Hence, we sentence him to rigorous imprisonment for ten years for the offence under Section 304, part I of the IPC.

5. The above is not enough to dispose of this matter. As the second accused Jabbar was placed on the same situation as the appellant in this case (if not lesser), Article 21 of the Constitution would not permit us to deny the same benefit to the second accused, notwithstanding the fact that the SLP and the review application filed by him have been dismissed by this Court. We are supported on this aspect by a course adopted by a three judge bench headed by chief justice Chandrachud in Harbans Singh v. State of U.P. In that case also, the co-accused were sentenced and the sentence had been confirmed by this Court earlier. But when a benefit was granted in another appeal to one of the other co-accused, the three judge bench held that the same benefit shall be extended to the earlier co-accused also albeit the dismissal of their appeals on an antecedent date."

7. In fact, if the reference is made to para 4 of the said judgement, the finding recorded therein was in relation to the involvement of the applicant therein in commission of offences under Sections 302 and 304 of the IPC, and it is only a factual aspect of the said case, which has been determined in para 4 and it had not laying down any parameter for consideration of the bail.

8. The principles enunciated in para 5 of the said judgement, where a reference has been made to a judgement and the ratio laid down by Harbans Singh V. State of U.P., 1982 (19) ACC 57, it was being observed that the infringement of Article 21 of the Constitution, has to be liberally construed in relation to an accused person, who is languishing in jail for a long time and the trial is being delayed, because of non framing of the charge which, in the instant case, it has been argued that since after submission of the charge sheet, the charge has not yet been framed and delayed formulation of charge itself will be construed to be a ground, sufficient enough to grant bail. But if the principles enunciated in para 5 of the said judgement is taken into consideration, the benefit there has been granted to a co-accused in another appeal by the larger bench and that was taken into consideration by a bench of lesser strength in a judgment reported in the matters of Akhil Ali (Supra), which had a binding precedent on a bench of a lesser strength. Hence, this ratio, as laid down by the Hon'ble Apex Court, will not be applicable in the matters of the present applicant which is based on altogether a different set of circumstances, where scholarship scheme was found rampant in the State.

9. The second judgement, the reference of which has been made by the learned counsel for the applicant is that as has been

reported in 2004 SCC (Crl.) 465, Sri Ram Choubey Vs. State of Bihar and another. It was a case where a person, who was languishing in jail for his alleged involving in commission of offence under Section 13 of the Prevention of Corruption Act to be read with Sections 467, 468 and 120-B of the Indian Penal Code. No parity on that basis can be granted for the reason being that, there, it was an isolated case, which was under consideration before the Hon'ble Apex Court, where the bail has been granted after imposing certain conditions, but it was yet again not a case where the aspect of history was engaged consideration in the said case. Hence, I disagree to apply the said principles, as it was based upon altogether on a different footing.

10. The third judgement on which the reliance has been placed by the applicant's counsel is as reported in 2018 (3) SCC 22, Dataram Singh Vs. State of Uttar Pradesh and another, and particularly, the reference has been made in para 5 of the said judgement, which is quoted hereunder:-

"5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra v. King-Emperor that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."

11. In the said case, the principle which was determined in para 5 of the said judgement was yet again dealing with the principles of Nikesh Tarachand Shah Vs. Union of India, reported in 2018 (11) SCC 1, where the impact of the historical background of engagement in a criminal offence was taken into consideration. It

has been held that in the light of the principles, laid down in the judgement reported in AIR 1931 All 356, Emperor Vs. H.L. Hutchinson, where it has been postulated that bail is a rule and refusal is an exception, I am of the view that the principles of grant of a bail and refusal of a bail to be an exception, its determination varies under the facts and circumstances of each individual case. Principally, much water has flown ever since the ratio laid down in 1931 by the Allahabad High Court, where corruption in a society is a lifestyle, which is being adopted and normally found very prevalent and are more heinous social offence towards the society.

12. Hence, I am not inclined to grant bail on the said principles. The second bail is, accordingly, rejected.

(Sharad Kumar Sharma, J.) 06.04.2021 M/