HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Criminal Misc. Bail Application No. 9138 of 2008
Shyam Lal....................................... Applicant (in jail)
Vs.
State of U.P. ........................................ Opposite party
Hon'ble Vijay Kumar Verma, J.
"What offence is made out on the basis of possession of counterfeit currency notes" is the main point that falls for consideration in this bail application.
2.Another important point for consideration is "Whether on granting bail by a Bench to one accused, another Bench also is bound to grant bail to similarly placed accused on the principle of parity?" .
3.By means of this application under section 439 of the Code of Criminal Procedure (in short, 'the Cr.P.C.), prayer for bail has been made on behalf of the applicant Shyam Lal s/o Ram Kishore in case crime no. 485/2007 under sections 489A, 489B, 489C, 489D, 489 E I.P.C. and 2/3 U.P. Gangsters and Anti Social Activities (Prevention) Act (in short, 'the Gangsters Act') of P.S. Saini, Distr ict Kaushambi.
4.An FIR was lodged on 31.10.2007 by Sri V. R. Premi, S.H.O. P.S. Saini, District Kaushambi. A case under section 489-A, 489-B, 489-C, 489-D and 489-E IPC was registered at crime no. 485/2007 against three persons namely Hublal, Shyam Lal (applicant herein) and Rajesh Kumar. The allegations made in the FIR, in brief, are that on getting information that Hublal s/o Ram Kishore Kurmi r/o village Mithepur Sayara is indulging in the activities of preparing counterfeit currency notes with his brothers, a raid was made by S.H.O. V. R. Premi with other police personnel at the house of Hublal on 31.10.2007 at about 8.40 p.m. The accused persons were found indulged in preparing counterfeit currency notes. One scanner printer is said to have been recovered, which was being used for preparing counterfeit currency notes by the accused Hublal. The applicant Shyam Lal was also found indulged in the process of counterfeiting currency notes and sixty nine counterfeit currency notes of Rs.1000/- (total Rs. 69,000/-) were recovered from him. One hundred fifty six counterfeit currency notes (41 currency Notes of Rs.500, twenty currency notes of Rs.50 and 95 currency notes of Rs. 100 Total Rs. 31000/-) are said to have been recovered from another co-accused Rajesh Kumar, who was also found indulged in the process of counterfeiting currency notes. All the three accused persons were arrested and brought to P.S. Saini, where case was registered against them as mentioned herein-above. After investigation section 2/3 U.P. Gangster Act also has been added against the applicant and other accused.
5.I have heard arguments of Shri J. H. Khan, Advocate holding brief of Shri W. H. Khan, counsel for the applicant and AGA Shri Rajeev Tiwari for the State.
6.Before coming to the submissions made by the learned counsel for the applicant about the merit of the bail application, I would like to express my views about second legal question, which I have posed for consideration as stated herein-above. This question has been posed for consideration, because during the course of hearing on the bail applications, generally it is being argued by Hon'ble members of the Bar that this Bench is bound to grant bail to the accused, if similarly placed accused having same role has been granted bail by another Bench. The Hon'ble members of the Bar contend that principle of parity should be accepted by this Bench also, as the sole ground for bail. It is worthwhile to mention that in present case also, the co-accused Hublal has been granted bail by another Bench of this Court vide order dated 09.02.2009 passed in bail application no. 3311 of 2009 and another co-accused Rajesh Kumar also has been granted bail by another Bench vide order dated 03.03.2009 passed in bail application no. 5726 of 2009 and in added section 467 and 420 IPC also, the accused Rajesh Kumar has been granted bail vide order dated 18.03.2009 passed in Criminal Misc. Bail application No. 6760 of 2009. Hence, necessity to consider aforesaid legal question has arisen.
7.The matter of granting bail on the ground of parity has been considered in several decisions of this Court. The Full Bench in Sunder Lal Vs. State 1983 Cr. L.J. 736 did not accept this proposition, which will be evident from the following observations in para 15 of the report:-
"The learned Single Judge since has referred the while case for decision by the Full Bench, we called upon the learned Counsel for the applicant to argue the case on merits. The learned Counsel only pointed out that by reasons of fact that other co-accused has been admitted to bail the applicant should also be granted bail. This argument alone would not be sufficient for admitting the applicant to bail who is involved in a triple murder case...."
8.This question was again examined by the Division Bench in Nanha Vs. State 1993 Cr L J 938, where after consideration of several earlier decisions on the point including Sunder Lal (supra), the Hon'ble Judges constituting the Bench gave separate opinions. Hon'ble G.D. Dubey, J. held as follows in para 24 of the reports;
"..... My answer to the points referred to us is that parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail application of the co-accused whose bail 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 material placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on examination of a given case, it transpires that the case of the applicant before the Court is identically 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 be also released on bail."
Hon'ble Virendra Saran, J. held as follows in para 61 of the reports:
"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)....."
This shows that there was no unanimity between the two Judges constituting the Bench and according to Hon'ble G.D. Dube, J. parity cannot be the sole ground for granting bail to a co-accused."
9.The Hon'ble M. Katju, J., as His Lordship then was, declined to grant bail on the ground of parity and referred the matter to larger Bench in Chander @ Chandra Vs. State of U.P. 1997 (34) ACC 311. The matter came up for consideration before a Division Bench. While deciding the said reference in Chander @ Chandra Vs. State of U.P. (1998 U.P. Cr.R. 263) the Division Bench held that:-
" a Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant facts essential for granting bail."
10.It is further held by the Division Bench in Chander @ Chandra Vs. State of U.P. (1998 U.P. Cr.R. 263) that if bail has been granted in flagrant violation of well settled principles, the order granting bail would not be in accordance with law. Such order can never form the basis for a claim founded on parity. The following observations made by the Bench in Para 17 of the report are also worth mentioning:-
"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 this connection it will be useful to notice the observations made by the Hon'ble Apex Court, where the claim was made on the ground that a similar order had been passed by a statutory authority in favour of another person. In Chandigarh Administration Vs. Jagjit Singh AIR 1995 SC 705, it was held as follows in para-8 of the reports:
"....... if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal and unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order."
"...... The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition.
"..... Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law."
12.Again in Secretary Jaipur Development Authority V. Daulatmal Jain, 1997(1) SCC 35, it was observed as follows in para-24 of the reports:
"Article 14 proceeds on the premises that a citizen had legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot denied of the benefit thereof. Such persons cannot be discriminated to deny the same benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously, no."
13.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."
14.The Apex Court in the aforesaid law report 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."
15.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.
16.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.
17.The matter of granting bail on the principle of parity was considered by this Court in Satyendra Singh Vs. State of U.P. 1996 A. Cr. R.867 also. The following observations made in para 16 of the report at page 871 are worth mentioning:-
"The orders granting, refusing or cancelling bail are orders of interlocutory nature. It is true that discretion in passing interim orders should be exercised judicially but rule of parity is not applicable in all the cases, where one or more accused have been granted bail or similar role has been assigned inasmuch as bail is granted on the totality of facts and circumstances of a case. Parity can not be a sole ground and is one of the grounds for consideration of the question of bail. Some of the circumstances have been enumerated in the Supreme Court Decision in Gur Charan Singh Vs. State (Delhi Administration), AIR 1978 SC 179.
18.Although the Hon'ble Apex Court has granted bail recently on the ground of parity in Izrahul lHaq Abdul Hamid Shaikh and Anr. Vs. State of Gujarat 2009 (3) JT 385, but this case can not be said to be the authority to hold that parity is a sole ground for granting bail. It is nowhere held as a binding precedent in this case that if bail has been granted by a Bench to any accused, then another Bench is also bound to grant bail to other similarly placed accused. Otherwise also a judgement of the Court is only an authority for what it actually decides and not what logically follows from it and judgement of the Court is not to be read mechanically as a Euclid's Theorem nor as if it was a statute. See (1) Quinn vs. Leathern, 1901 AC 495; (2) Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213; (3) Bhavnagar University vs. Palittana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111; (4) Bharat Petrolieum Corporation Ltd. & another vs. N. R. Vairamani & another (AIR 2004 SC 4778) (5) Sarva Shramik Sanghatana (K.V.), Mumbai vs. State of Maharashtra & Ors. AIR 2008 SC 946; (6) Government of Karnataka & Ors. Vs. Gowramma & Ors. AIR 2008 SC 863.
19.In view of the observations made in aforesaid decisions, I am of the considered opinion that on granting bail by a Bench to one accused, another Bench is not bound to grant bail to similarly placed accused on the principle of parity and bail of each accused has to be considered on merit.
20.Now I come to the submissions made by learned counsel for parties about merit of the bail application. The main contention raised by the learned counsel for the applicant was that even if the entire version of the FIR is accepted to be true, the offence would not travel beyond section 489C IPC, which is bailable and hence, the applicant as of right is entitled to be released on bail. The contention of the learned counsel was that possession of counterfeit currency notes is punishable under section 489-C I.P.C. only and in such case, the offence punishable under section 489-B IPC would not be made out.
21.It was also submitted by the learned counsel for the applicant that after planting counterfeit currency notes, the applicant has been falsely implicated in this case and no recovery of any currency note was made from him.
22.It was further submitted by learned counsel for the applicant that on the basis of long incarceration in jail, the applicant deserves bail, because due to delay in trial, Fundamental Right of speedy trial envisaged under Article 21 of the Constitution is being infringed.
23.It was also submitted that there is no criminal antecedent of the applicant except present case.
24.In the matter of granting bail on the principle of parity, it was submitted by learned counsel for the applicant that other Benches of this Court are granting bail in such cases treating the possession of counterfeit currency notes as an offence punishable under section 489-C IPC, which is bailable and hence, to maintain consistency in judicial orders, this Court also should grant bail in such cases on the principle of parity, as desirability of consistency requires that if one accused has been granted bail on merit by another Bench, then similarly placed accused also should be admitted to bail.
25.The bail application was opposed by learned AGA contending that the offences punishable under sections 489-A and 489-B IPC are also made out in this case in addition to the offence under section 489-C IPC and hence, in this heinous anti-national crime, the applicant should not be admitted to bail notwithstanding that the co-accused have been granted bail by another Benches of this Court. The contention of the learned AGA was that the applicant has not furnished any explanation about keeping counterfeit currency notes with him and since in the affidavits filed in support of bail applications, it is not stated that the currency notes were lying somewhere, which were picked up by the applicant, hence it would be presumed that the applicant had received seized currency notes from any other person knowing or having reason to believe the same to be counterfeit and hence the offence punishable under section 489-B IPC is clearly made out against the applicant. It was also submitted by learned AGA in this context that although in cases of possession of counterfeit currency notes, presumption envisaged section 114(a) of Indian Evidence Act in terms is not applicable, but if the person who is found in possession of counterfeit currency notes has not furnished any explanation as to how he come into possession of such currency notes, then on the basis of the anology of this section, it shall be presumed in such cases that he has received such currency notes from other person knowing or having reason to believe the same to be counterfeit and in such case the offence punishable under section 489-B IPC would be made out against such person.
26.It was further submitted by learned AGA that if any person receives from any other person counterfeit currency notes or bank note knowing or having reason to believe the same to be forged or counterfeit, then he shall be punished under section 489-B IPC and if the said bank notes or currency notes are intended to be used as genuine, then in such case the offence punishable under section 489C IPC also be made out.
27.It was also vehemently contended by learned AGA that offence under section 489-A is clearly made out against the applicant Shyam Lal, because at the time of police raid in the house of his brother Hublal, the applicant also was found indulged in the process of counterfeiting currency notes and pair of scissors, which is used in cutting the currency notes was recovered from him along with counterfeit currency notes.
28.So far as the matter of granting bail to the applicant on the ground of parity is concerned, I have already held that parity cannot be the sole ground for granting bail. Therefore, in my considered opinion, the applicant in this heinous crime cannot be admitted to bail on the ground of parity.
29.There is prima facie evidence to show that the applicant Shyam Lal was found indulged in the process of preparing counterfeit currency notes along with his brother Hublal and Rajesh Kumar and on the search of this applicant, sixty nine currency notes of Rs.1,000/- were recovered on the spot at the time of police raid in the house of co-accused Hublal. In the affidavit accompanying the bail application, no explanation for keeping such huge quantity of counterfeit currency notes has been furnished. It is not the case of applicant that the currency notes, which are shown to have been recovered from him, were lying at any place, which were picked up by him. Therefore, accepting aforesaid submissions made by learned AGA at this stage, but without expressing any final opinion about these submissions and merit of the case, in this heinous anti-national crime, the applicant does not deserve bail and granting bail in such crime would be a fraud on the nation, as ultimately the economy of entire nation is adversely affected by such crime.
30.In my considered opinion, on the basis of the long incarceration in jail also, the applicant can not be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.
31.Consequently, the bail application of the applicant Shyam Lal is hereby rejected.
32.The concerned trial court is directed to conclude the trial of the applicant and other co-accused within a period of six months applying the provisions of section 309 Cr.P.C. and avoiding unnecessary adjournments. If the co-accused, who have been bailed out, remain absent, or their counsel do not co-operate, then their trial may be separated and by making sincere efforts the trial of the applicant will be concluded within aforesaid period.
33.The office is directed to send a copy of this order within a week to the trial court concerned for necessary action.
Dated: 29th June, 2009
yachna/-
