HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Criminal Misc. Bail Application No. 13402 of 2008
Nawal............................................. Applicant
Vs.
State of U.P. .............. Opposite party
Hon'ble Vijay Kumar Verma, J.
The applicant seeks bail in crime no. 773 of 2007 under Section 147, 148, 149, 307, 302, 506 I.P.C. of P.S. Kosi Kalan, District Mathura.
2. I have heard arguments of Sri Rajul Bhargava, learned counsel for the applicant, Sri Brijesh Sahai, learned counsel for the complainant and learned A.G.A. for the State and also perused the record carefully.
3.An F.I.R. was lodged on 24.12.2007 at 11.50 a.m. at P.S. Kosi Kalan (Mathura) by the complainant Devendra s/o Chhiddi Singh. A case under Section 147, 148, 149, 307, 302, 506 I.P.C. was registered at crime no. 773 of 2007 against the accused Raghuvir, Laxman, Bhopal, Padam, Vijendra and Nawal (applicant herein). The allegations made in the F.I.R., in brief, are that the accused persons after forming an unlawful assembly on 24.12.2007 at about 10.30 a.m. committed the murder of Chiiddi Singh, father of the complainant, by causing injuries to him by means of fire arm and farsa. The applicant Nawal is said to be armed with farsa, whereas the co-accused Bhopal, Padam and Vijendra are said to be armed with firearms. It is also said that injuries were caused to the complainant Devendra also.
4.Parity is one of the ground for bail in this case, about which it was submitted by the learned counsel for the applicant that after having considered the merit of the case, this Court has granted bail to the co-accused Bhopal vide order dated 28.04.2008 passed in criminal misc. bail application no. 11470 of 2008 and on the basis of that order, another co-accused Padam has also been granted bail by this Court and hence, the applicant also should be granted bail.
5.It was further submitted that the co-accused Padam and Bhopal had caused injuries by means of firearms, which appear to be fatal to the deceased and the applicant-accused is said to have caused injuries by means of farsa on the head of deceased, but no internal damage was caused by those injuries and hence, on this ground also, the applicant should be granted bail.
6.Next submission made by the learned counsel for the applicant was that F.I.R. of this case is ante-timed, as crime number and Sections in the inquest report and other papers have been added subsequently.
7.It was also submitted that six persons have been arrayed as accused, but it is not ascertainable as to which accused had caused the death of the deceased and hence on this ground also the applicant deserves bail.
8.The bail was resisted by the learned A.G.A. and learned counsel for the complainant mainly on the ground that bail application of the co-accused Laxman has been rejected by another Bench of this Court vide order dated 13.03.2008 passed in criminal misc. bail application no. 6062 of 2008 and hence, on this ground the applicant cannot be admitted to bail.
9.On merit, it was submitted by the learned A.G.A. and learned counsel for the complainant that the applicant had caused injuries to the deceased by means of farsa and hence, seeing the active role of the applicant in the incident, he does not deserve bail.
10.On the matter of refusing bail on the ground of rejection of the bail application of co-accused Laxman, it was contended by learned counsel for the applicant that on this ground, bail cannot be refused to the applicant, as there is no parity in the rejection of bail. For this contention, reliance has been placed on the cases of Yunis V. State of U.P. (1999 UPCrR 259) and Sobha Ram V. State of U.P. (1999 (29) ACC 59).
11. So far as the matter of declining the bail to the applicant on the ground of rejection of the bail application of co-accused Laxman by another Bench of this Court is concerned, in my opinion, on this ground bail cannot be refused, because as held by this Court in the cases of Yunis v. State of U.P. and Sobha Ram v. State of U.P. (supra), there is no parity in rejection of bail. In the case of Yunis V. State of U.P. (supra), this Court has made the following observations regarding parity in bail matters:-
"In Nanha v. State of U.P. (1993 Criminal Law Journal 938) a Division Bench of this Court earlier has held that where the case of co-accused is identically similar and another co-accused has been granted bail by the Court, the said co-accused is entitled to be released on bail on account of desirability of consistency and equity. As regards the principle of parity in matter of rejection of bail application, it may be observed that law of parity is a desirable rule. In matter of release on bail to the co-accused may be applied where the case of the co-accused is identically similar, but cannot be applied for rejecting the bail applicant of co-accused. A co-accused cannot be denied bail, merely on the ground that the bail of another accused has been rejected by the Court earlier, the obvious reason being that while the earlier bail order denying bail to another co-accused was passed, the latter co-accused applying for bail was not heard.
12. The Division Bench of this Court in the case of Nanha v. State of U.P. (1993 Criminal Law Journal 938) has made the following observations:-
"The Prior rejection of the bail application of one of the accused cannot preclude the court from granting bail to another accused whose case has not been considered at the earlier occasion. The accused who comes up with the prayer for bail, and who had no opportunity of being heard or placing material before the court at the time when the bail of another accused was heard and rejected, cannot be prejudiced in any other manner by such rejection."
Therefore, in view of the law laid down in above mentioned cases, bail to the applicant cannot be refused on the ground that another Bench of this Court has declined bail to the co-accused Laxman.
13. According to the F.I.R., the applicant-accused Nawal is said to have caused injuries on the head of the deceased by means of farsa. Annexure-II to the accompanying affidavit is the copy of post-mortem report of deceased Chhidi Singh. On perusal of this post-mortem report, it is revealed that no internal damage or fracture was caused on the head of deceased, due to the injuries, which are said to have been caused by means of farsa. Therefore, it cannot be said that the applicant Nawal was responsible for the death of the deceased. Ante-mortem injury no. 7 on the person of deceased was gun shot wound of entrance 2.00 cm x 1.5 cm x cavity deep in front of abdomen in middle line upper part. Scorching was present on the injury. The post-mortem report reveals that left kidney of the deceased was lacerated and one pellet was recovered from the kidney. Spleen was also lacerated and two pellets and one tickle were recovered from there. Small intestine was perforated. Peritoneum was also lacerated. Regarding these injuries, it was submitted by the learned counsel for the applicant that these injuries are the result of firearm wound, which is said to have been caused by other co-accused, who have been granted bail and hence, on this ground, the applicant deserves bail, because the injuries, which are said to have been caused by him, were not fatal to the deceased and the injury caused by firearm appears to be the cause of his death.
14.Having considered the submissions made by the learned counsel for the parties and keeping in view all the facts and circumstances, without expressing any opinion on merit, the applicant may be admitted to bail.
Let the applicant Nawal involved in case crime no. 773 of 2007 under Sections 147, 148, 149, 307, 302, 506 I.P.C., P.S. Kosi Kalan, District Mathura be released on bail on his executing a personal bond of Rs. 50,000/- and furnishing two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned and executing an undertaking in the following terms:-
1. The applicant shall not tamper with prosecution evidence by intimidating the witnesses.
2. He shall cooperate with the investigation and speedy trial.
3. He shall not indulge in any criminal activity or commission of any crime after being released on bail.
Dated : 04.07.2008
Yachna/-
