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Cancellation of Bail in Non Bailable Offences

Mubarik Khan vs Nasir Khan
Equivalent citations: 1998 CriLJ 4527
Author: D Misra
Bench: D Misra
ORDER
Dipak Misra, J.
1. In this application preferred under Section 439(2) of the Code of Criminal Procedure, the petitioner has prayed for cancellation of order granting bail in favour of non-applicants 1 to 4 by the learned Additional Sessions Judge, Chhindwara, in Bail Application Nos. 785/97, 907/97, 940/97 and 947/97.
2. The facts, as have been unfurled, are thus : On the basis of the F.I.R. lodged by the informant Crime No. 175/97 was instituted for offences punishable under Sections 147, 148, 302 and 149, IPC against the accused, non-applicants 1 to 4, along with other accused persons, for assaulting one Habibullah who succumbed to the injuries sustained by him. According to the prosecution, a 2nd dispute between Habibullah and Nasir, Muselman, was going on for a considerable length of time and certain litigations had already cropped up. On the date of occurrence i.e. 9-6-97, at about 1 P.M., non-applicants 1 to 4 along with some other accused persons with an intention to plough the disputed land, arrived with a tractor and other agricultural implements. It was objected to by Nasir, but his protest was not paid heed to. Nasir went back to his village and returned with others for restraining the accused persons from plaughing the field. This gave rise to a fight in which Ramjan was injured. Deceased Habibullah intervened to rescue the injured person, but he was assaulted whereby he sustained injuries and ultimately succumbed to the same. After the Criminal machinery was not in motion, the accused-non-applicants 1 to 4 were apprehended and taken to custody. They filed applications for grant of bail before the learned Additional Sessions Judge, Chhindwara. The said applications were objected to by the Public Prosecutor as well as by the present petitioner. It was brought to the notice of the learned Additional Sessions Judge that the other accused persons, who had not been arrested, were terrorising the witnesses and all the accused persons had criminal antecedents and, therefore, they should not be enlarged on bail. It was also pointed out that if they would be released on bail, there was every possibility of their tampering with the witnesses. It was also high-lighted that their release would put the fair trial in jeopardy and defeat the course of justice. In spite of the objection, as the order granting bail was passed, the present petitioner has invoked the jurisdiction of this Court under Section 439(2) Cr.P.C.
3. Shri Y.P. Sharma,learned Counsel for the petitioner, assailing the impugned order, has contended that the learned trial Judge has failed to exercise his discretion while enlarging the non-applicants 1 to 4 on bail as he has not taken into consideration the serious allegations against them and the effect and impact of their release on bail. It is also submitted by him that after their release, they are tampering with the evidence by threatening the witnesses. It is contended that as they have betrayed the trust reposed in them and misused the liberty granted to them, there is justifiable ground to curtail their liberty.
Controverting the aforesaid submissions, Shri. S.L. Kocher,learned Counsel for non-applicants 1 to 4, has contended that there is no infirmity in the order passed by the learned Additional Sessions Judge in releasing the present accused persons on bail and the discretion used does not exhibit perversity of approach is appreciating the allegations as well as the obtaining factual matrix. It is also contended by him that after their release, they have not abused their liberty and in absence of specific instances brought on record to substantiate the allegations that there has been tampering of prosecution witnesses, there could be no order for curtailment of liberty and the accused persons would not be lable to forfeit the privilege of bail.
Mr. S.K. Gangrade, learned Panal Lawyer, for the State, appearing for the State non-applicant No. 5, has fairly submitted that the State has not preferred any application for cancellation of the order granting bail. He has also admitted that except the comunication made by one Mubarik Khan on 18-7-97 to the Town Inspector of Police Station, Chhindwara, which has been annexed to the petition, nothing else has been intimated at any point of time in regard to the conduct of the non-applicants 1 to 4, after their enlargement on bail.
4. From the rival contentions raised at the Bar, it is perceptible that Mr. Sharma,learned Counsel for the petitioner, has sought cancellation of the order granting bail on two counts, namely, the order has been passed improperly by erroneous and arbitrary exercise of judicial discretion and there are supervening circumstances which go a long way to establish that the accused persons have misutilised the liberty given to them after their admission to bail. It is not in controversy that the powers of this Court under Section 439(2) of the Code of Criminal Procedure can be exercised even in absence of any supervening circumstance. This means that if there is impropriety in the order passed by the lower Court in exercise of its discretion, this Court can exercise its jurisdiction under Section 439(2) Cr.P.C. to cancel the order granting bail. If the power so exercised does not smack of arbitrariness or impropriety, this Court would not exercise its jurisdiction for cancellation of bail unless there arc supervening circumstances to show that it would be no longer conducive to a fair trial to allow the accused to retain his freedom. In this regard, I may refer to the decision rendered in the case of Ku. Anju Khatri v. Gyanchand 1993 Cr LJ 2274 (MP) wherein it has been held as follows (at page 2278) :
In the present case the Sessions Judge having admitted the non-applicants to bail on irrelevant considerations after the rejection of the bail application by this Court without there being any fresh ground available to the accused, it amounted to the arbitrary exercise of judicial discretion and as such the order was vitiated by serious infirmity. It would be right and proper for this Court in the interest of justice in suo motu exercise of inherent powers to interfere with such an order of grant of bail.
Thus, there is no prohibition that is absence of supervening circumstances indicating that the accused has misutilised the liberty granted to him, after being admitted to bail, the superior Court cannot exercise the power of cancellation of bail. Recently this Court in Haridatt Arya v. Sadan Arya, M. Cr. C. No. 2523/96, decided on 5-8-97 held as :
From the aforesaid it is luminously clear that bail granted illegally or improperly by arbitrary exercise of judicial discretion can be cancelled by use of the lancet under Section 439(2) of the Code even if there is no additional circumstances against the accused after his enlargement on bail.
5. Keeping the aforesaid parameter in view, let me proceed to scrutinise whether the order passed by the learned Additional Sessions Judge suffers from arbitrariness or exercise of injudicious discretion.
On a perusal of the impugned order, I find that the learned trial Judge has considered the nature of allegations against the petitioner, the dispute existing between the parties prior to the occurrence, the altercation and the fight that took place on the date of occurrence and such other accompanying factors. He has indicated is the order that there are materials to indicate that another accused named Ebrar was the main assailant. The bail application of the said accused has been rejected. The learned Additional Sessions Judge has also taken note of the omnibus allegation against the non-applicants. Taking into consideration the totality of the circumstances and the entire range of facts, I am of the considered view that enlargement of the accused, non-applicants 1 to 4 on bail by the learned Additional Sessions Judge neither smacks of arbitrariness nor show use of discretion in a capricious or injudicious manner. I am of the considered view that the same does not warrant any interference on the ground of illegal or improper exercise of discretion.
6. The second contention of thelearned Counsel for the petitioner relates to the supervening circumstances which have necessitated cancellation of the order granting bail. In this regard, I may refer to the decision of the Apex Court rendered in the case of Daulatram v. State of Haryana 1995 (1) SCC 349 : 1995 Cri LJ 3648 wherein the Apex Court registered the view as follows:
Rejection of bail in a non-bailable case at the. initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to interfere with due course of administration of justice or abuse in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justify ing the cancellation of bail. However, bail once grained should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
7. The present factual matrix has to be decided on the touchstone of the aforesaid settled principles of law. In the petition, except slating that there is every likelihood of (he accused persons committing murder of the objector and other eye-witnesses nothing specific has been brought on record. The complaint, which has been annexed to the petition, is absolutely vague and is genera! in nature. An allegation, which is mercurial in nature, cannot form the foundation to curtail the liberty of an accused who has already been enlarged on bail. Nothing has been brought on record to indicate that continuance of non-applicants 1 to 4 on bail would impade a fair trial. The power vested in the Court for cancellation of bail has to be exercised, with circumspection. There has to be cogent and overwhelming circumstances for directing cancellcation of the bail granted. The bail granted to art accused should not be cancelled unless there are strong and compelling circumstances and the Court is not expected to interfere with a discretion which has been exercised for granting bail. On the basis of vague allegations regarding tampering with evidence by giving threats to witnesses without mentioning specific instances of threat. It is well-settled that an application for cancellation of bail has to be bona fide and cannot be utilised as a tool to wreak vangeance. Vendatta cannot be a base for cancellation of bail. Grounds, which are germane for cancellation of bail must exist. The allegations, which are spacious and unsupported, cannot form the foundation for exercise of jurisdiction of this Court under Section 439(2) Cr.P.C.
8. In view of the preceding analysis, the application being devoid of merit, deserves to be and is hereby dismissed.
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suspension of sentence and grant of interim bail.

THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.B.101/2012 in CRL.A. 268/2010
Date of Decision: 29.03.2012
MADAN LAL & ANR ….. Appellants Through: Mr. Vivek Sood, Advocate
Versus
STATE ….. Respondent Through: Ms Fizani Husain, APP with SI
Ram Partap, P.S. Dwarka, Sector-
23.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. The present appeal was filed by appellants namely Madan Lal and Mohinder assailing the judgment and order on sentence dated 13.4.2009 and 14.1.2010 passed by learned ASJ, Delhi whereby the appellants were convicted and sentenced to undergo RI for 10 years with fine of Rs. 10,000/- each under Section 376(g) IPC in case FIR No.557/2006 registered at Police Station Dwarka, New Delhi. They are in custody since 29.6.2006.
2. The instant application under Section 389 Cr.PC read with Section 482 Cr.PC is preferred by the appellants/ applicants for suspension of sentence and grant of interim bail. The main ground for suspension of sentence and grant of interim bail that has been pressed is that the appellants are in jail for more than five years and want to establish family and social ties. It has been argued that the grounds on which parole is granted to the convicts under the Guidelines of 2010, and one of which is re-establishing the family and social
Crl Appeal No.268/2010 Page 1 of 4 ties, would be applicable to the grant of interim bail to the appellants. Reliance was placed on the decision of Division Bench of this Court dated 19.12.2011 in Rajesh Kumar Vs. Govt. of NCT of Delhi [W.P.(C) 5128/2011].
3. I have heard learned counsel for the appellants as also learned APP on behalf of the State and perused the record. With regard to the consideration of Parole/ Furlough Guidelines of 2010 for the release of the convict on interim bail or suspension of sentence, the Division Bench of this Court in the aforesaid case held as under :
“7. We are however of the opinion that even when application for interim suspension of sentence or bail is filed by a convict in a pending appeal, it is always open to the convict to seek suspension/ bail from this Court on the grounds as provided for regular parole and the High Court can always take those grounds in consideration while entertaining applications for suspension and/or interim suspension of the sentence. There is nothing in Section 389 or otherwise in law, barring the appellate Court from granting interim bail or suspending the sentence on considerations as for parole. Clause 10 very clearly stipulates that the “convict can seek appropriate orders from the High Court” which means that the convict can seek the order on parity of grounds for regular parole…..”
4. Now since this Court is seisin of appeal of the convicts, as per Clause 10 of the Guidelines, the parole cannot be granted to the convicts by the Competent Authority. As per the said clause, the appropriate orders can be passed by this Court in such cases where the appeal of the convicts are pending. Section 389 of Cr.PC deals with suspension of sentence pending appeal and release of the convicts on bail. In Phool Chand v Union of India [2000 (3) SCC 409], the Supreme Court observed that though parole has
Crl Appeal No.268/2010 Page 2 of 4 different connotation than bail, the substantial legal effect of the bail and parole is to release a person from detention or custody. There is no statutory provisions dealing with question of grant of parole which is generally speaking an administrative action. Parole is not suspension of sentence or period of detention, but provides convict’s release from custody and changing mode of undergoing sentence.
5. In view of the judgment of Division Bench of this Court in Rajesh Kumar (supra), there does not remain any doubt that the grounds which are available for grant of parole are also available for consideration of suspension of sentence and interim bail pending appeal of the convicts in this Court. Since parole has different connotation than bail, the parole does not suspend the sentence or the period of detention. The suspension of sentence pending appeal is provided under Section 389 Cr.P.C. This specific provision provides discretion to the appellate court to suspend the sentence of the convict and releasing him on bail and the discretion that can be exercised by the appellate court is to be judicious having regard to the entire factual matrix as well as other facts and circumstances, both of the convicts as also of the victims and the society. Then for suspending the sentence of a convict and releasing him on bail, the reasons are required to be recorded in writing by the appellate court. Section 389 Cr.PC does not permit suspension of sentence and grant of bail as a matter of routine or for that matter as a matter of right. It is not only that the grounds of parole mentioned in the Guidelines would be considered by this Court while exercising discretion under Section 389. In addition, the Court would also be required to take into account the main consideration such as whether any prima facie ground is disclosed for substantial doubt about the conviction, the seriousness of the offence, the period of sentence, whether the
Crl Appeal No.268/2010 Page 3 of 4 disposal of appeal or revision is likely to take unreasonable time. The ground of establishing family or social ties would not be available in each case for suspension of sentence and grant of interim bail to the convicts. This would all depend upon the facts and circumstances of each case.
6. The appellants are convicted of committing a serious offence of gang rape of a minor girl. Having regard to the facts and circumstances of the case and the nature of offence and the manner in which the offences were committed, this ground alone which has been taken by the appellants does not entitle them for suspension of their sentence and releasing them on interim bail. I find no merits in the application. The application is hereby dismissed.
M.L. MEHTA, J.
MARCH 29, 2012
Bail on the ground of parity
“Whether an accused is entitled to be released on bail on theground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon’ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted.
Nanha S/O Nabhan Kha vs State Of U.P. on 18 September, 1992
Equivalent citations: 1993 CriLJ 938
Author: G Dube
Bench: G Dube, V Saran
JUDGMENT
G.D. Dube, J.
1. In the third bail application moved by the petitioner for bail in case Crime No. 53 of 1989 under Section 302, IPC of P.S. Ganj, district Rampur Hon’ble N.L. Ganguli, J. has referred the following question to a larger Bench for an authoritative pronouncement:–
“Whether an accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon’ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted.”
2. The short facts relevant for the decision of the aforesaid question are as under:–
A first information report was lodged against Iqbal, Dildar Kha, Khursheed and Nanha at 11-10 a.m. on 9-10-1989 in the above mentioned police station. Khursheed and Dildar had moved application No. 1865 of 1991 for bail. This application was rejected by Hon’ble V.N. Mehrotra, J. Nanha also moved first bail application which was rejected on 7-12-1991. The second application moved by Khursheed, Dildar and Nanha were rejected. Khusheed was granted bail on the ground of age in the third attempt.
3. In the third bail application moved on behalf of Dildar, bail was granted by Hon’ble V.N. Mehrotra, J. Thereafter, Iqbal Husain Khan was also granted bail by Hon’ble B.P. Singh, J.A. Prayer was made that the applicant be also granted bail on the ground of parity. The Hon’ble single Judge referred to two judgments of this Court, namely, Shobharamv. State of U.P. 1992(29) All Crl. Cases 59 and Sayed Khan v. State of U.P. 1990 All Crl. Cases 1908. The Hon’ble Judge is of the view that the aforesaid two decisions are taking contrary view about parity in granting of bail and this matter should be set up at rest by a pronouncement of a larger Bench.
4. We have heard the learned counsel for the applicant and the learned A.G.A.
5. It was argued by learned counsel for the applicant that formerly this Court had been granting bail on the ground of parity. In this connection, our attention was drawn to Ram Roop v. State of U.P. 1987 UP Crl. Rulings 30. In this case, it was observed that as a co-accused having role similar to the applicant in that case was granted bail, the applicant should also be granted bail.
6. The next case, in which reliance was placed, is Sobha Ram v. State of U.P. 1992 All Crl. Cases 59. In this case, Hon’ble V.N. Mehrotra, J. had observed that it was not at all obligatory upon the counsel of an applicant accused to indicate that the application of a co-accused had been rejected. The Hon’ble Judge had referred to Ali Husain v. State of U.P., 1990 UP Crl. Reports 93 in which Hon’ble S.K. Dhaon, J. had placed reliance on Kalloo v. State of U.P. 1989 AWC 65. In Kalloo’s case the desirability of consistency in matter of sentence was considered. It is not applicable to the matter of bail.
7. Learned counsel had also placed reliance on Sanwal Das Gupta v. State of U.P. 1986 (23) Alld. Crl. Cases 79 in which Hon’ble D.N. Jha, J. had observed that where a bail was granted to a co-accused, then the Magistrate can in view of maintaining parity admit the co-accused to bail provided he offers himself to be bailed out.
7A. Hadi v. State of U.P. 1986 (23) All Crl. Cases 390 was also cited by learned counsel for applicant. This is a very short judgment of Hon’ble P. Dayal, J. In this case, the applicant was bailed out on the ground that the co-accused had been bailed out earlier. The facts of the case have not been stated in the judgment. Hence it is not of much help to the applicant.
8. Our attention was drawn to Kesho Ram v. State of Assam : AIR 1978 SC 1095 : (1978 Cri LJ 844). In this case, the offence was alleged against the applicant falling under Section 5(2) of the Prevention of Corruption Act. The bail was granted by the Sessions Judge, but it was cancelled by the High Court mainly for the reason that the appellant had simultaneously moved for bail in Sessions Court as well as in the High Court without disclosing to the Sessions Court that he had moved for bail in the High Court. The Supreme Court observed that the refusal for bail is not an indirect process of punishing the accused before he is convicted. The Supreme Court, had allowed the appellant to continue on bail granted by the Sessions Court.
9. Learned counsel for the applicant had urged that the view of Hon’ble K.K. Chaubey, J. in Sayed Khan v. State of U.P. 1990 All Crl. Cases 98 does not lay down the correct law. It was urged that it is not at all obligatory upon an accused applicant to state in his application that the application of a co-accused has been rejected previously. He is only liable to disclose all the facts relating to his case as to why he should be enlarged on bail. He cannot be saddled with any other responsibility nor can be punished for not disclosing the facts of rejection.
10. In Sayed Khan’s case the case of Ashok Kumar v. State of Punjab, AIR 1977 SC 109 : (1977 Cri LJ 164) has been referred. In this case, appellant Ashok Kumar and his two brothers Kewal Krishna and Dharam Pal were charged before the Sessions Judge for the offence of intentionally causing the death of one Dharam Pal. On trial the Sessions Judge accepted the prosecution case and convicted Ashok Kumar under Section 302, IPC. Dharam Pal and Kewal Krishna were, however, convicted and sentenced to ten years rigorous imprisonment and a fine of Rs. 1,000/- under Section 326 read with Section 34, IPC. Kewal Krishna and Dharampal were further convicted and sentenced to two years R.I. under Section 324 read with Section 34, IPC. The three accused preferred appeal against the order before the High Court. The High Court acquitted Dharam Pal, but maintained the conviction of other two appellants, namely, Ashok Kumar and Kewal Krishna. The sentence of life imprisonment imposed on Ashok Kumar was maintained, but in regard to Kewal Krishan the High Court reduced the sentence to two years. Ashok Kumar and Kewal Krishna preferred a petition for Special Leave before the Supreme Court. Ashok Kumar succeeded in obtaining Special Leave, but the petition of Kewal Krishna was rejected. In the above circumstances, the-Supreme Court observed (at page 166 of Cri LJ):
“The appellant would also be constructively guilty for the other injuries caused to the deceased, since it is apparent from the prosecution evidence that the appellant, Kewal Krishna and the unidentified assailant attacked the deceased in pursuance of a common intention shared by all of them. The common intention, according to the learned Sessions Judge and the the High Court, was to cause grievous hurt to the deceased and it was on this footing that the learned Sessions Judge and the High Court convicted Kewal Krishan of the offence under Section 326 read with Section 34. We very much doubt whether the learned Sessions Judge and the High Court were right in taking the view that the common intention of the three assailants was merely to cause grievous hurt to the deceased.
As many as four injuries were inflicted on the deceased by knives and out of them, one was on the head and three were on the chest. Having regard to the weapons used by the three assailants, the number of injuries caused by them and the vital parts of the body on which the injuries were inflicted, it does appear that the common intention of the assailants was to cause the death of the deceased and Kewal Krishna could, therefore, have been convicted under Section 302 read with Section 34. But unfortunately the State has not been vigilant in enforcement of the criminal law and regrettably it has not preferred an appeal against the acquittal of Kewal Krishna under Section 302 read with Section 34, with the result that his conviction under Section 326 read with Section 34 must stand. And if that be so, consistency compels us to reach the conclusion that the appellant also must, on the same basis, be convicted under Section 326 read with Section 34 instead of Section 302, read with Section 34.”
11. The case of Ashok Kurnar is a peculiar case. The observations of the Supreme Court cannot be applied to bail matters. Mostly at the time of consideration of bail the trial has not started and even investigations are not over. In several cases, the Supreme Court has laid down the broad consideration which should weigh with the Court, while granting bail. In Mohan Singh v. Union Territory, AIR 1978 SC 1095 : (1978 Cri LJ 844) itself the Supreme Court has observed that refusal of bail is not an indirect process of punishing an accused person before he is convicted. ‘This is a confusion regarding rationale of bail’, the Supreme Court remarked. In this case the Supreme Court had referred to Gurcharan Singh v. State (Delhi Administration) AIR 1978 SC 179: (1978 Cri LJ 129), where it has explained the rationale of bail. After discussing the scope of Section 437 and 439 of Cr. P.C. the Supreme Court observed (at pages 135 & 136):
“S. 439(1), Cr. P.C. of the New Code, on the other hand, confers special powers on the High Court or the Court of Sessions in respect of bail. Unlike under Section 439(1) there is no ban imposed under Section 439(1), Cr. P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circum-, stances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Cr. P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 439(1) and Section 439(1), Cr. P.C, of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and witnesses; the likelihood, of the accused; fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.”
12. In Sayed Khan’s case, Hon’ble K. K. Chaubey, J. had considered the case of Babu Singh v. State of U.P., AIR 1978 SC 527 : (1978 Cri LJ 651). In this case the Supreme Court had observed that in case the bail application of an accused had been rejected and the second application for bail was moved it was held that the previous order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different consideration. Gama v. State of U.P. 1987 Crl. Law Journal 749 and Surat Bahera v. State of Orissa, 1988 Crl. Law Journal 1508 were also referred wherein it was held that successive bail applications are not barred.
13. Hon’ble K.K. Chaubey, J. had also referred to Sitaram v. State, 1981 (18) ACC 182, which has been relied by learned A.G.A. in support of his case that parity cannot be the sole consideration for bail. Hon’ble K.K. Chaubey, J. had extracted the following observations from the said judgment:–
“The claims of the principle of consistency and demand for parity by the accused, however, are not compelling one’s and one cannot override the judges contrary view on the case before him if even awareness of the desirability of consistency fails to move his view. In other words this is only a factor to be considered and not a governing consideration. This is clear from the Supreme Court decision in Ashok Kumar’s case (supra) also where the court declined to follow the principle in the matter of sentence.”
14. Before proceeding about the desirability of parity in the matter of granting bail it would be better to draw our attention to the exact meaning of parity. In Chambers English Hindi Dictionary 1981 the word “parity” has been stated to mean ‘twai’, ‘sTHspft’. ‘WTPTHT’, ‘^MCII’, ‘a^^Mai’, ‘w*r, ‘^rr^w and ‘WT ^MflT1. In New Lexicon Webster’s Dictionary 1987 Edition, the word “parity” has been stated to mean ‘equality in status’, ‘values’ etc.
15. In ‘Shorter Oxford English Dicton-ary’ 1936 ‘parity’ has been stated to mean, ‘The state or condition of being equal or on a level, Equality, Equality of rank or Status’.
16. Thus the word ‘parity’ connotes a state when a person is placed on the same footing as the other person. We have to examine as to how far this alleged principle of parity can be invoked in the matter of bail.
17. Learned counsel for the applicant has cited a case in State v. Captain Jagjit Singh, AIR 1962 SC 252 : (1962 (1) Cri LJ 215). In this case, an argument had been advanced before the Supreme Court that as two accused had been enlarged on bail the respondent should also be released. Jagjit Singh was a Captain in the Army. At the time of his arrest, he was employed in a delegation in India of a French Company. The two other accused were employed in the Ministry of Defence and Army Head Quarters. It was alleged that they, in conspiracy, had passed on official secrets to a foreign agency. Jagjit Singh’s application for bail was rejected by the Sessions Judge. Thereupon, this accused moved an applicaton before the High Court under Section 498 of the Criminal P. C. (1898). The main contention of applicant before the High Court was that on the facts desclosed the case came under Section 5 of Official Secrets Act which is bailable and not under Section 3 of the Act which is not bailable. The High Court was of the view that it was not possible to go into the question wheher Section 3 or 5 applied. However, taking the view that two other co-accused had been granted bail, the High Court granted bail to the accused Jagjit Singh. The State went in appeal against this order.
18. While considering the argument whether Jagjit Singh should be also granted bail, when two other persons prosecuted along with him were granted bail, the Supreme Court observed at page 217 :
“It is true that two of the persons who were prosecuted along with the respondent were released on bail prior to the commitment order; but the case of the respondent is obviously distinguishable from their case inasmuch as the prosecution case is that it is the respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him. The fact that the respondent may not abscond is not by itself sufficient to induce the court to grant him bail in a case of this nature.”
19. The above case itself indicates that the Supreme Court had not accepted the contention of learned counsel for Captain Jagjit Singh that as the two co-accused had been released, then the High Court was right in releasing Captain Jagjit Singh also on the ground of parity. The Supreme Court had considered the case of Jagjit Singh and after coming to the conclusion that his case stood on a different footing even though he was a member of conspiracy, a great responsibility lay upon him in the matter of divulgence of official secrets. The Supreme Court had cancelled the bail granted by the High Court.
20. Both A.G.A. and learned Counsel for the applicant have relied upon Sunder Lal v. State of U.P.> 1983 AWC 148 : (1983 Cri LJ 736). In this case, the facts were that a report was lodged by one Sant Ram against five persons including one Sunder Lal. The Investigating Officer submitted charge-sheet and thereafter the Judicial Magistrate committed the applicant along with others to the Sessions Judge. The applicant Sunder Lal was in jail at the time the case was committed to the court of session. In pursuance of the committal order a custody warrant was issued against the applicant. In this case, the detention order of the applicant had challenged as being illegal. In the end, it was also argued that other co-accused had been admitted to bail, the applicant should also be granted bail. The Full Bench observed :
“The learned counsel only pointed out that by reason of fact that other co-accused had been admitted to bail the applicant should also be granted bail. This argument alone would not be sufficient for admitting the applicant bail who is involved in a triple murder case.”
21. The above case of Sunder Lal does not help the applicant in any manner. However, this shows that a Full Bench of this Court has laid down the law that the argument of parity alone would not be sufficient to enlarge an applicant on bail.
22. From the cases discussed above, we find that parity alone had not been considered as a ground for release on bail. A Full Bench of this Court as well as the Supreme Court had refused to release an applicant on bail simply because the other co-accused had been released on bail. In the cases of Captain Jagjit Singh and Sunder Lal, the Supreme Court and High Court examined the case of each applicant on its own footing, even though co-accused had been released on bail.
23. On an examination of the cases cited before us, I am of opinion that the case of an accused has to be examined individually. Simply because the co-accused has been granted bail cannot be the sole criteria for granting bail to an accused. Even at the stage of second or third bail 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. The norms laid down by the Supreme Court in Gurcharan Singh’s case, viz:
(i) the nature and gravity of the circumstances in which offence is committed;
(ii) the position and the status of the accused with reference to the victim and witnesses;
(iii) the likelihood of;
(a) the accused fleeing from justice;
(b) of repeating the offence
(c) of jeopardising his own life being faced with grim prospect of possible conviction in the case;
(d) of tampering the witnesses.
(iv) the history of the case as well as of its investigation; and
(v) other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out,
have to be considered even at the time of consideration of bail at a subsequent stage of second or third application. I have stated the above norms even at the risk of repetition even though they have been quoted earlier.
24. 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 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, 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. As regards the second part of the referred question my answer is that it is not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously.
25. The record of this case be sent expeditiously to the single Bench with the above answers for disposal of the bail application.
VIRENDRA SARAN J.:~ 26. I have perused the judgment of brother G.D. Dube, J. I would like to give my own views and reasons for our conclusion in answering the question referred to the Bench.
27. In the third Criminal Misc. Bail Application in Crime No. 53 of 1989, under
Section 302, I.P.C. of P.S. Ganj, | District Rampur, Hon’ble N.L. Ganguly, J. has referred the following question to a larger Bench:–
“Whether an accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by another Hon’ble Judge before whom without disclosing the fact that the bail application of another co-accused with similar role has already been rejected by another Bench, bail was granted.”
28. It would appear that a First. Information Report was lodged against four persons, namely, Iqbal, Dildar Khan, Khursheed and Nanha on 9-10-1989 at P.S. Ganj, District Rampur. Khursheed and Dildar moved bail application No. 1865 of 1991 in this Court. This application was rejected by the Hon’ble V.N. Mehrotra J. The second bail application was moved by Khursheed and Dildar but was again rejected. Khursheed again applied for bail a third time and was granted bail on the ground of age. Third bail application was filed by Dildar vide Criminal Misc. Bail Application No. 722 of 1992 and Hon’ble V. N. Mehrotra, J. granted him bail on 31-3-1992 with the following order :-
“This is third bail application by the applicant; his earlier two applications have been rejected by me on merits. Heard-counsel for the applicant arid learned A.G.A. as well as perused affidavit and supplementary affidavit filed along with documents. After consideration of all the materials placed before me I am of the view that the bail may be granted to the applicant. Let applicant Dildar, involved in case Crime No. 355 of 1989 under Section 302, I.P.C., P.S. Ganj, Rampur be released on bail on his executing a personal bond and furnishing two sureties, each in the like amount, to the satisfaction of C.J.M. Rampur.”
29. Co-accused Iqbal Khan also applied for bail and was granted bail by Hon’ble B.P. Singh J. by his order dated 23-4-1992 in Criminal Misc. Bail Application No. 13613 of 1992.
30. The order passed by Mr. Justice B.P. Singh reads thus:–
“Heard. Co-accused Dildar Khan was granted bail on 31st March 1992. The case of the applicant appears to be similar.
Let the applicant Iqbal Hussain Khan involved in crime No. 355 of 1989 under Section 302, I.P.C., P.S. Ganj, Rampur be released on bail provided he furnishes a personal bond and sureties to the satisfaction of C.J.M., Rampur.”
31. The applicant Nanha’s first bail application being Criminal Misc. Bail Application No. 6013 of 1991 was rejected on 6-5-1991 by Hon’ble Mr. Justice N. L. Ganguly. His second bail application, being Criminal Misc. Bail Application No. 11017 of 1991, was again rejected by the same Hon’ble Judge on 9-12-1991.
32. After grant of bail to co-accused Dildar Khan and Iqbal Hussain Khan by the two Hon’ble Judges Nahna again filed a third bail application and it was urged that on the ground of parity Nanha should also be granted bail.
33. The bail application came up before Hon’ble Mr. Justice N. L. Ganguly who has referred the case to a larger Bench to decide the question which has been mentioned above.
34. Counsel on either side have been heard at length.
35. The question for consideration is whether if bail is granted to one co-accused the other co-accused whose case stands on the same footing is entitled to bail.
36. The argument of the learned State Counsel is that it is open to different Judges to reject or grant bail to accused even if their cases stand on same footing. I am unable to persuade myself to accept this submission of the learned State Counsel. 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. If the argument of the learned State Counsel is carried further it would mean that even the same Judge while deciding bail application moved by several accused, whose cases stand on the same footing, is free to reject or grant bail to any one or more of them at his whim. Such a course would be wholly arbitrary.
37. The public, whose interests all judicial and quasi-judicial authorities ultimately have to serve, will get a poor impression of a court which delivers contrary decisions on identical facts. Hence for the sake of judicial uniformity and non-discrimination it is essential that if the High Court granted bail to one co-accused it should also grant bail to another co-accused whose case stands on the same footing. Alexis de Toqueville remarked that a man’s passion for equality is greater than his desire for liberty.
38. The preamble of the Constitution states that the people of India gave to themselves the Constitution to secure to all its citizens amongst other things “Equality of status and opportunity.”Thus the principle of equality was regarded as one of the basic attributes of Indian Citizenship.
39. In a recent case of Shri Lekha Vidyar-thi v. State of U.P., AIR 1991 SC 537 (para 21) the Supreme Court laid down:–
“We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity. Contrary to the professed ideals in the preamble.”
40. Since judicial activity is one kind of State activity it must be held, as laid down in Shri Lakha Vidharthi’s case, that courts cannot discriminate. In para 25 of the decisions the Hon’ble Supreme Court quoted with approval Wade’s Administrative Law which states:–
“The whole conception of unfettered dis-cretion is inappropriate to a public authority which possesses power solely in order that it may use them for the public good.”
41. The Supreme Court went on to say that this principle applies not only to executive functions but also to judicial functions.
42. The High Court also performs sovereign functions and cannot discriminate with persons similarly situated.
43. In a democracy the judiciary, like any other State organ, is under scrutiny of the public and rightly so because the people are the ultimate masters of the country and all State organs are meant to serve the people. Hence the people will feel disappointed and dismayed if courts give contrary decisions of the same facts.
44. In this connection a reference may be made to the decision of the Supreme Court in Beer Bajranj Kumar v. State of Bihar, AIR 1987 SC 1345 in which the Supreme Court had set aside the order of the Patna High Court, dismissing the writ petition when on identical facts another writ petition had earlier been admitted. The same view was expressed in another case of Sushil Chandra Pandey v. New Victoria Mills, 1982 UPLBEC 211. These decisions lend support to the view I am taking. In Been Bajranj Kumar’s case (supra) the Supreme Court observed :
“This, therefore, creates a very anomalous position and there is a clear possibility of two contrary judgments being rendered in the same case by the High Court.”
45. In a very recent case of Har Dayal Singh v. State of Punjab, reported in 1992 (4) JT(SC) 353: (AIR 1992 SC 1871) the Hon’ble Supreme Court has held that when the High Court had acquitted four accused giving reasons to discard testimony of certain witnesses the parity of reasoning should have been extended to the fifth accused also. The Supreme Court, therefore, allowed the appeal and acquitted the fifth accused as well.
46. In the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 : (1991 Lab 1C 91) the Supreme Court observed at page 173 :–
“There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however, high placed they may be. It is all the more improper and undesirable to expose the precious rights like rights like the right of life, liberty and property to the vageries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy the high seats of power.”
47. In his referring order the learned single Judge has referred to two conflicting views one is of Hon’ble K. K. Chaubey, J., in the case of Said Khan v. State of U.P., 1989 Allahabad Criminal Cases 98 and the other is Sobha Ram v. State of U.P., 1992 Allahabad Criminal Cases 59.
48. In the case of Said Khan (supra) Mr. Justice K.K. Chaubey held that the principle of consistency or demand for parity is only a factor to be considered and not a governing consideration.
49. In the light of the discussion made in the preceding paragraphs, the view expressed by K.K. Chaubey, J. does not hold ground. Judicial consistency is a sound principle and it cannot be thrown to the winds by the individual view of judges. After all it is settled law that judicial discretion cannot be arbitrarily exercised. Moreover high aspirations of the public from the courts will sink to depths or despair if contrary decisions are given on identical facts. All judicial and quasi-judicial authorities have not only to serve the public but also to create confidence in the minds of the public. Hence for the sake of uniformity and non-discrimination it is essential that uniform orders should be passed even in bail matters in case of persons who stand on the same footing. If the contrary course is adopted the public will loose confidence in the administration of justice.
50. In his judgment K.K. Chaubey, J. has placed reliance on the case of Ashok Kumar v. State of Punjab, AIR 1977 SC 109 : (W77 Cri LJ 164) in Ashok Kumar’s case, Ashok Kumar along with Dharmpal and Kewal Krishna were prosecuted for murder and all of them were assigned the role of causing knife injuries. The Sessions Judge convicted and sentenced Ashok Kumar under Section 302/34, I.P.C. to Imprisonment for Life while the other two were convicted and sentenced under Section 326/34, I. P. C. to ten years’ R. I. On appeal the High Court dismissed the appeal of Ashok Kumar, Kewal Krishna’s sentence under Section 326/34, I.P.C. was reduced from ten years’ to two years’ R.I. and Dharmpal was acquitted. The Supreme Court was of the view that all the three accused had shared common intention to commit murder punishable under Section 302/34, I.P.C. The Supreme Court disagreed with the view taken by the Sessions Judge and the High Court but to uphold the principle of consistency the Supreme Court convicted Ashok Kumar under Section 326/34, I.P.C. instead of Section 302/34, I.P.C. The Supreme Court observed:–
“And if that be so, consistency compels us to reach a conclusion that the appellant also must, on the same basis, be convicted under Section 326 read with Section 34 instead of Section 302 read with Section 34.”
51. Thus the Supreme Court upheld the principle of consistency K.K. Chaubey, J. has relied on the observation of the Supreme Court to the effect that Kewal Krishna had been let of on a ridiculously light sentence of two years’ Rigorous Imprisonment and the Supreme Court observed that it would pass proper sentence incase of Ashok Kumar. This observation, according to K.K. Chaubey, J. runs contrary to the principle of consistency. It is noteworthy that the Supreme Court released Ashok Kumar on the period of sentence already undergone by him which was six years and ten months. It is to be noted that the Supreme Court did not specify the period of sentence other than what had been awarded to Kewal Krishna. In a subsequent case of Kallu v. State, 1989 A.W.C. 65, the Supreme Court has specifically upheld the principle of consistency even in the matter of sentence. In Kallu’s case (supra) two separate special leave petitions were filed by different accused against the same judgment of the High Court. One of the petition was dismissed by one Bench but the other special leave petition which was heard by another Bench, was partly allowed and the sentence was reduced from seven years’ R.I. to three years’ R.I. The Supreme Court reviewed its earlier order of dismissal of the first special leave petition and reduced the sentence from 7 years’ R.I. to three years’ R.I. Thus accused whose cases stand on the same footing are entitled to equal treatment. In Ajai Hasia v. Khalid Muzib Sehravardi, 1981 (2) SCR 79 : (AIR 1981 SC 487) the Supreme Court held that equality is directly opposed to arbitrariness. In a more recent case of Miss. Mohini Jain, reported in 1992 (4) JT(SC) 292: (AIR 1992 SC 1858) the Supreme Court after considering large number of cases quoted with approval the following passage from the case of Ajai Hasia at page 1866:–
Unfortunately in early stages of evolution of our Constitutional Law Article 14 came to be identified with the doctrine of classification… In Royappa v. State of Tamil Nadu this Court laid bare a new dimension of Article 14 and pointed out that article has highly activist magnitude and it embodies a guarantee against arbitrariness.”
52. Even though Article 14 may not apply to judicial pronouncements it would be highly illogical to canvass that the courts of law would insist that the legislature and executive should pursue the path of equality as envisaged under Article 14 but themselves pass orders creating inequality.
53. There are large number of cases of this Court in which the question of parity in the matters of bail has been considered earlier and the weight of judicial authority is in favour of the principle of parity being followed. In the case of Hadi v. State, 1986 Allahabad Criminal Cases 390 Hon’ble Parmeshwari Dayal, J. bailed out the accused on the ground that co-accused had been bailed out earlier. In another case of Sanwal Das Gupta v. State of U.P., 1986 Allahabad Criminal Cases 79, D.N. Jha, J. observed that where bail was granted to a co-accused then even the Magistrate can admit co-accused to maintain parity. In the case of Ram Roop v. State of U.P. 1987 Criminal Rulings 30, this Court observed that a co-accused having similar role having been granted bail another co-accused should also be granted bail. In the case of Ali Hussain v. State of U.P.,1990 U.P. Criminal Rulings 93, Hon’ble S.K. Dhaon, J. placed reliance on the Supreme Court’s case of Kallu (supra) and granted bail on the ground of parity. In a unreported decision of this Court in Criminal Misc. Bail Application No. 1360 of 1987Rai Munna v. State of U.P. Hon’ble G.P. Mathur, J. granted bail on the ground of parity though the Hon’ble Judge clearly observed that he was still of the opinion that the applicant was not entitled to bail on merits, but, however, as his case was not distinguishable from the case of co-accused the bail was granted on the ground of parity. In his judgment in Sobha Ram’s case (supra) Hon’ble V.N. Mehrotra, J. has considered some more unreported decisions of this Court in which bail has been granted on the ground of parity. I respectfully agree with the view of Hon’ble V.N. Mehrotra, J.
54. The learned counsel for the applicant has also placed reliance on the case of Mohan Singh v. Union Territory, AIR1978 SC 1095: (1978 Cri LJ 844) wherein the Supreme Court observed that the refusal of bail is not an indirect process of punishing the accused before he is convicted. This case does not throw any light on the question of parity. The second case cited by the learned counsel for the applicant also referred in Said Khan’s case (supra) is Babu Singh v. State of U.P., reported in AIR 1978 SC 527 : (1978 Cri LJ 651). This case also is not on the point because the Supreme Court only held that order refusing an application for bail does not unnecessarily preclude, another, on a later occasion giving more material further developments and different considerations. The case may help the applicant only to the extent that further development in the case at hand is that co-accused has been granted bail.
55. The learned counsel for the applicant cited the case of State v. Capt. Jagjeet Singh, AIR 1962 SC 253 : (1962 (1) Cri LJ 215). This case has no bearing on the question to be decided in the instant case. In the said case the Supreme Court had cancelled the bail of one of the accused and had held that his case was distinguishable. The Supreme Court made the following observation at p. 217:
“It is true that two of the persons who were prosecuted along with the respondent were released on bail prior to the commitment order, but the case of the respondent is obviously distinguishable from their case inasmuch as the prosecution case is that it is respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him.”
56. A Full Bench decision of this Court in the case of Sunder Lai v. State, 1983 A. W.C. 148 : (1983 Cri LJ 736) was also cited at the Bar. In this case the question referred to the larger Bench was regarding the illegality of remand orders under Sections. 167, 209, 309 of the Criminal P. C. the Full Bench came to the conclusion that there was no infirmity in the orders of remand and hence on that ground bail could not be granted. In the Full Bench case the question of equality in the matter of granting bail had neither been raised nor adjudicated upon. It appears that at the fag end of the argument the learned Counsel had prayed that bail may be granted to the applicant in that case because other co-accused had been admitted to bail. The Full Bench rightly rejected the argument because merely if one accused is granted bail all accused cannot be released on bail unless they are able to satisfy that their cases stand on identical footing. The relevant portion of para 14 of the judgment of the Full Bench staties:–
“Learned counsel only pointed out that by reasons of fact that other co-accused had 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.”
57. The word ‘alone’ is of significance.
58. The word ‘parity’ means the state or condition being equal or on a level; equality; equality of rank or status (See Shorter Oxford English Dictionary 1936 Ed.). In other words it means being placed at the same footing. All the accused of a case always do not stand on the same footing. While considering bail of different accused the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. The case of Cap. Jagjeet Singh (supra) is an illustration wherein the Supreme Court distinguished the case of Capt. Jagjeet Singh on the ground that he was in touch with foreign agency and leaking out secrets. The Supreme Court in the case of Gur Charan Singh v. Delhi Administration, AIR 1978 SC 179 : (1978 Cri LJ 129) laid down that the considerations for grant of bail are inter alia the position and status of the accused with reference to the victim and the witnesses; likelihood of the accused; fleeing from justice; of repeating offence; of jeopardising his own life, being faced with grim prospect of possible conviction in the case; of tampering with witnesses; and the like. These are additional factors which are to be judged in the case of individual accused and it may make the cases of different accused distinguishable from each accused. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands on identical footing.
59. None the less the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a judge in a tight and straight jacket to grant bail automatically. There may be case which may require an exception; where a judge may not simply take a different view from the judge who granted bail earlier to a co-accused but where the conscience of the judge revolts in granting bail. In such a situation the judge may choose to depart from the rule recording his reasons. However, such cases would be very few.
60. As regards the second part of the referred question whether it is duty of the co-accused to disclose in his bail application the fact that on an earlier occasion the bail application of another co-accused in the same case has been rejected. 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. Hence it is not necessary for the accused to disclose in his application that the bail has already been refused to another accused earlier.
61. 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). As regards the second part of the question, answer is that it is not at all necessary for an accused to state in his bail application that the bail application of a co-accused has been rejected previously.
62. The record of this case be sent ex-peditiously to the learned single Judge with the above answers for the disposal of the bail application.
“It is not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously.”
The last case relied upon is the decision of the Apex Court reported in 1996 Cri. L.J. 3235, Kashmira Singh v. Duman Singh. It was a case where a complaint was made to the Chief Minister against grant of bail, which was treated as application for cancellation of bail. The Apex Court observed that
that was referred was :
“Whether an accused is entitled to be released on bail on theground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon’ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted.”
Hon’ble G. D. Dubey, J. in his opinion in para 17 referred to a decision of Apex Court reported in AIR 1962 S.C. 252, State v. Captain Jagjit Singh. In that case, an argument had been advanced before the Supreme Court that as two accused had been enlarged on bail the respondent should also be released. The High Court took the view that it was not possible to go into the question whether Section 3 or 5 applied. However, taking the view that two other co-accused had been granted bail, the High Court granted bail to the accused Jagjit Singh. The State went in appeal against that order before the Apex Court.
Vishnu Ram Chandra Maheshwari vs State Of M.P. on 8 February, 1999
Equivalent citations: 1999 (1) MPLJ 516
Author: T Shankar
Bench: T Shankar
ORDER
Tej Shankar, J.
Shri L.S. Chauhan, Advocate for the applicant.
Shri R.P. Johri, Additional Government Advocate for the State.
Shri Arun Barua, Advocate for the complainant.
1. Heard.
2. This is 4th bail application on behalf of Vishnu Maheshwari.
3. The learned counsel for the applicant contended that the first application of the applicant was rejected on merits on 30-6-1998. The 2nd application was disposed of on 14-10-1998 whereas the 3rd application was decided on 30-10-1998. He contended that while disposing of the 3rd application, the Court taking into consideration the fact that the applicant’s wife was suffering from heart disease granted a short term bail for 15 days. The applicant complied with the terms of the order and surrendered. He also urged that while disposing of the 2nd bail application, it was argued before the Court that the accused was threatening the witnesses and in case, he be released, he will not be available, but this contention is belied from the fact that after the release of the applicant for a short period of 15 days, the applicant submitted to the jurisdiction of the Court and surrendered. He urged that after the disposal of the application of the applicant on 30-10-1998, co-accused Kishore Maheshwari has been granted bail vide order dated 30-11-1998 and the case of the applicant is similar. He, therefore, urged that the applicant is entitled to bail on the ground of parity. A lengthy argument has been advanced by the learned counsel for the applicant that he is entitled to bail on the ground of parity. He also urged that the applicant is not obliged to inform the Court that the bail application of another co-accused has already been rejected. It is the duty of the prosecution to apprise the Court with the fact.
4. On the other hand, the learned counsel for the State contended that the first application was rejected on merit and while disposing of the 2nd application, this Court took into consideration the fact that co-accused Ram Kumar Maheshwari had already been granted bail. The applicant did not inform the Court at the time of hearing the bail application that Kishore Maheshwari co-accused, had been refused bail.
5. I have considered the contentions raised before me by the learned counsel for the parties. The question is of common importance and as such it requires detailed consideration.
6. The learned counsel for the applicant has relied upon 1992 Cri. L.J. 1371, Shobha Ram v. State of UP. and contended that in this case it was laid down that:-
“Where an application for bail filed by accused-applicant and a co- accused is rejected by High Court, and subsequently the co-accused has been granted bail on second application, the accused is also entitled to be granted bail on his second application on ground of parity. The claim of parity should not be denied merely because the other co- accused, who was granted bail, did not inform the Court about the rejection of bail application of other co-accused by different Benches.”
The second decision, which has been pressed into service is 1993 Cri. L.J. 938, Nanha v. State of U.P. In this case also, the Division Bench observed that:
“If on examination of a given case, it transpires that the case of the applicant seeking bail is identical, similar to the accused, who has been bailed out, then the desirability of consistency will require that the applicant should also be released on bail.”
It was further laid down in this case :
“It is not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously.”
The last case relied upon is the decision of the Apex Court reported in 1996 Cri. L.J. 3235, Kashmira Singh v. Duman Singh. It was a case where a complaint was made to the Chief Minister against grant of bail, which was treated as application for cancellation of bail. The Apex Court observed that it was a case of free fight between parties and both parties received injuries. Non-filing of cross-complaint and non-mentioning of fact that bail application of co-accused was rejected twice could not be a ground for cancellation of bail granted to accused especially when Court was aware of fact when it granted bail. Much reliance has been placed upon these authorities in support of his contention that the applicant was not obliged to disclose before the Court that co-accused was refused bail.
7. I have carefully gone through all the above mentioned authorities relied upon by the learned counsel for the applicant. The reasoning given in the case of the Shobha Ram referred to above in support of the contention is that when the bail application of one co-accused is rejected, on merits, the other co- accused who is not a party to that bail application, had no opportunity to make his submissions before the Court. It was further observed that it cannot be said that his bail application would be liable to be rejected merely because the bail application of other co-accused had been rejected earlier. In the case of Nanha (supra) two Hon’ble Judges expressed their opinion separately, though they agreed. The question that was referred was :
“Whether an accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon’ble Judge before whom without disclosing the fact that the bail application of another co- accused with similar role had already been rejected, by another Bench, bail was granted.”
Hon’ble G. D. Dubey, J. in his opinion in para 17 referred to a decision of Apex Court reported in AIR 1962 S.C. 252, State v. Captain Jagjit Singh. In that case, an argument had been advanced before the Supreme Court that as two accused had been enlarged on bail the respondent should also be released. The High Court took the view that it was not possible to go into the question whether Section 3 or 5 applied. However, taking the view that two other co-accused had been granted bail, the High Court granted bail to the accused Jagjit Singh. The State went in appeal against that order before the Apex Court. In para 19, the Hon’ble Judge observed that the above case itself indicates that the Supreme Court has not accepted the contention of the learned counsel for Captain Jagjit Singh that as the two co-accused had been released, then the High Court was right in releasing Captain Jagjit Singh also on the ground of parity. The Supreme Court had considered the case of Jagjit Singh and after coming to the conclusion that his case stood on a different footing even though he was a member of conspiracy, a great responsibility lay upon him in the matter of divulgence of official secrets. The Supreme Court had cancelled the bail granted by the High Court. In para 22, the Hon’ble Judge further observed :
“From the case discussed above, we find that parity alone had not been considered as a ground for release on bail. A Full Bench of this Court as well as the Supreme Court had refused to release an applicant on bail simply because the other co-accused had been released on bail…”
Further it was observed that:
“… Even at the stage of second or third bail 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.”
In para 23, the norms laid down by the Hon’ble Supreme Court in Gurcharan Singh’s case have been enumerated. However, the learned Judge concluded 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. As regards the second part of the referred question is concerned, it was observed that it was not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously.
8. The other Hon’ble Member of the above Bench Hon’ble Virendra Saran, J. also observed that if the case of the applicant before Court is identical, similar to the accused, on facts and circumstances, who had been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. Regarding the second part of the question referred, he also answered that it was not at all necessary for an accused to state in his bail application that the bail application of a co-accused has been rejected previously.
In the case of Kashmira Singh (supra) the Apex Court was considering the question of cancellation of bail. The observation of the Apex Court is that:
“…It was the prosecution/complainant’s duty to bring to the Court’s notice that two applications of the co-accused for bail were rejected. If the accused did not mention it, nothing prevented the opposite side from placing it on record. It seems to be an omission on the part of the prosecution/complainant’s side but, for that it would be wrong to charge them with having suppressed facts…”
However, the Court further observed that:
“There was no positive evidence to attribute knowledge to the accused Hence, it cannot also be ground for cancellation of bail granted to accused.”
In this very authority, the argument of the suppression of facts were advanced without bringing on record the knowledge of the rejection of the bail application of co-accused with valid basis.
9. In view of the law laid down in the aforesaid authorities, it is apparent that generally the rule of consistency requires that if a co-accused has been granted bail by the Court and the case against the applicant before the Court is similar and identical, he should also be granted bail but the mere fact that the case is at par cannot be said to be a ground on the basis of which the subsequent accused has to be granted bail. The Court has to go through the facts and if there are circumstances to show that the accused-applicant who claims bail on parity ground, cannot be granted bail on other grounds his bail can be rejected. To illustrate it, I may point out that if it is brought on record that he will not be available, if released on bail or he will terrorise the witnesses or has been terrorising the witnesses or he has suppressed the fact which was within his knowledge, he can be refused bail. I may reiterate that mere parity cannot be said to be sole ground to grant bail.
10. In view of what has been stated above, we have to see as to whether the present applicant is entitled to bail. His first application was rejected on merits. While disposing of the 2nd bail application, the ground of parity was raised and it was found at the time of hearing of the second application of co- accused that the Court was not informed that the application of co-accused was rejected. It was further observed that it was the duty of the accused to bring to the notice of the court the fact including that fact. Here I may pause and observe that the application of Ram Kumar Maheshwari was also moved by the same learned counsel, who has moved the present application, Shri L. S. Chauhan, Advocate. It cannot, therefore, be said that the learned counsel had no knowledge that the bail application of co-accused has been rejected. The judicial propriety demands that Members of the Bar must bring to the notice of the Court all the facts correctly. They are part of the judicial system. The function of the Court as well as the Members of the Bar is to see that justice is impartially done. A member of the Bar is also an officer of the Court. Thus in the present case, as Shri L. S. Chauhan, Advocate, had been appearing for all the accused persons including Ram Kumar Maheshwari whose application was allowed, it was his duty to have informed the Court about the fact that the application of co-accused had been rejected. Of course, it is true that heavy duty is cast upon the prosecution to place before the Court all the facts. It was the duty of the prosecuting counsel as well as the complainant to apprise the Court that the bail application of other co-accused has been rejected and it appears that he failed in his duty. Again, it appears that co-accused Kishore Maheshwari has been granted bail and the fact of rejection of other application was not brought to the notice of the Court when that application was taken up and heard. Neither the learned counsel for the applicant, who is also the counsel of other co-accused persons nor the learned counsel appearing for the State brought to the notice of the court the fact that bail of other co-accused had been rejected. It is rather unfortunate. However, I am of the opinion that for this lapse on the part of the learned counsel for the applicant, the applicant cannot be made to suffer. The prosecution is also equally responsible inasmuch as it too did not bring to the notice of the Court that the second application of the applicant was rejected on another ground as well because’ at that time it was pointed out to the Court that the witnesses have been threatened and that if the applicant is released, he will not be available, Later on, the third application of the applicant was allowed for a short term of 15 days on the ground of serious ailment of his wife, which fact was admitted by the State as well. The applicant did surrender in Court in terms of the order passed by the Court. There is no other allegation from the side of the prosecution that the applicant during the period he was on bail terrorised the witnesses or did any act which was uncalled for. It is apparent that the applicant abided the order of the Court and surrendered within the period specified. The learned counsel for the State has not been able to “demonstrate that the case of the applicant is distinguishable on facts from the accused, who have been granted bail. The general law is that if there is nothing to show that the availability of the applicant-accused will not be sure or he will terrorise the witnesses or influence them and there is no severity in the offence or role played by him, he can be enlarged on bail. In the present case there are no such circumstances. Co-accused has already been granted bail. Thus taking into consideration the totality of facts and circumstances, the application of the applicant is allowed in view of the circumstances stated above. He be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the C.J.M. concerned.

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 27th January, 2011
Date of Order: February 14, 2011
+ Crl. MC No. 2462/2010
% 14.02.2011 Nitika Gauba …Petitioner Versus
State & Ors. …Respondents Counsels:
Mr. M.S. Yadav for petitioner.
Mr. Sunil Sharma, APP for State/respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. This application has been preferred by the petitioner for cancellation of anticipatory bail granted to the
Asha Gauba (mother-in-law), Kanika Gauba (nanad) and Shiv Kumar Gauba (Taya) on the ground that the
learned ASJ while granting anticipatory bail had not appreciated the facts correctly. The respondent no.2 is the
widowed mother in law of complainant, respondent no.3 is unmarried sister in law(husband’s sister) of the
complainant and respondent no.4 is the elder brother of deceased husband of respondent no.2 (Taya Sasur).
2. In the complaint, the applicant had made allegations against the husband and these three respondents for
harassing her for dowry. The learned ASJ while granting bail to them had considered that mother in law of
complainant was a government servant in Ministry of Railways and was aged around 50 years. The
respondent no.4 Taya Sasur was aged around 70 years and respondent no.3 was an unmarried sister of
respondent Crl.MC 2462/2010 Page 1 Of 3 no.2. The learned ASJ observed that he had perused the police file
and without commenting upon the merits or otherwise of the allegations, considered that no useful purpose
was likely to be served by directing the investigating officer to arrest these three persons for the purpose of
investigation and he therefore granted anticipatory bail to them.
3. In the grounds for cancellation of anticipatory bail, it is stated that the husband of the petitioner played
fraud upon the petitioner. While petitioner and husband were living under the same roof, he filed a divorce
petition against the petitioner without information of the petitioner and even after filing divorce petition, he
continued to maintain physical and sexual relations with her. The respondents no.2, 3 and 4 were having
knowledge of this act of the husband of the petitioner. The husband in order to blackmail her and to disrepute
her took vulgar snaps of her to force her to withdraw the petition. She also alleged that she was badly beaten
up by mother in law, nanad. Even servant of respondent no.2 gave her merciless beatings. Her husband
Nitika Gauba vs State & Ors. on 14 February, 2011

hatched up a criminal conspiracy of criminal assault on her on 25th April 2010 and she had to be taken to
DDU Hospital by the police where her MLC was prepared.
4. For cancellation of bail, the court must have strong reasons. In the present case, the bail was granted by the
trial court looking into the nature of allegations. In cases of matrimonial discord Section 498A/406 IPC are
invariably invoked against every family member of husband, it becomes very difficult for the trial court to
assess the truth of the allegations made by the complainant. Normally every complainant ropes in all relatives
including the remote relatives living far away from the matrimonial home making stereotyped and similar
allegations against everybody. This tendency of roping in every known relative including the minors in
offences under Section 498A/406 IPC etc has in fact made these provisions introduced in Indian Penal Code,
to prevent cruelty upon women, blunt. The gross misuse of these provisions for roping in every known
relatives Crl.MC 2462/2010 Page 2 Of 3 of the husband poses a grave problem for the courts during trial and
while deciding bail applications. Only oral statement of complainant and her parents is there in respect of
cruelty and dowry demand, and normally there is no agreed list of articles given at the time of marriage
Dowry Prohibition Act proved futile to bring to an end to the evil of dowry for this reason. Mere oral
allegations of giving huge dowry without substantiating these allegations by bills of purchase of the articles or
list prepared at the time of marriage and signed by both the parties cannot be given credence. Even those
people, who have meager salaries or are hand to mouth, claim of giving huge amounts at the time of marriage.
It is in the interest of both the parties that a list of dowry articles should be prepared by the parties at the time
of marriage duly signed by both the parties. Though in this way, the evil of dowry cannot be curbed but it
would curb the tendency of making astronomical claims later on just to rope in every member of the family of
in laws as a criminal.
5. In the present case, there is no corroboration of the oral allegations of the applicant. I find no reason to
cancel the anticipatory bail granted to the respondents no.2 to 4 when there are no allegations of misuse of the
bail on their part. The application for cancellation of bail is hereby dismissed

Grounds for Cancellation of Bail

Nityanand Rai vs State Of Bihar & Anr on 11 April, 2005
Author: S Hegde
Bench: N S Hegde, S Sinha
CASE NO.:
Appeal (crl.) 529 of 2005
PETITIONER:
Nityanand Rai
RESPONDENT:
State of Bihar & Anr.
DATE OF JUDGMENT: 11/04/2005
BENCH:
N. SANTOSH HEGDE & S.B. SINHA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl) No. 3280 of 2004)
SANTOSH HEGDE, J.
Heard learned counsel for the parties.
Leave granted.
By this appeal the appellant challenges an order of the High Court of Judicature at Patna made in Criminal Miscellaneous No. 29702 of 2003 dated 19-5-2004 by which order the High Court cancelled the bail granted to the appellant earlier by itself on 19-9-2003. Basic facts necessary for the disposal of this appeal are as follows :-
It is stated by the prosecution that the petitioner is an accused in Hajipur (T) P.S. Case No. 71 of 1993 which was registered U/s 302, 307, 120 B of the I.P.C. and Section 27 of the Arms Act on the basis of a complaint given by one Raj Kishore Rai on 6-3-1993 wherein it is stated that the appellant along with some others had murdered his brother Ram Davan Rai. Pursuant to the said complaint so far as the present appellant is concerned a charge-sheet was filed only on 11th July, 2003 nearly 10 years after the date of alleged incidence. On coming to know of the filing of such a charge-sheet the appellant moved the Sessions Court at Vaishali for grant of anticipatory bail which was rejected by the Sessions Court as per its order dated 30th of May, 2003. And being aggrieved by the said order of the Sessions Court, the petitioner preferred an anticipatory bail application before the High Court of Patna which also came to be rejected on 17-7-2003 directing the appellant to surrender and seek regular bail. As per the said direction, it is stated that the appellant surrendered before the C.J.M., Vaishali at Hajipur on 21-7-2003 and moved a regular bail application which was rejected by the learned Sessions Judge on 7-8-2003. Against the said order of rejection of regular bail, the appellant preferred a Criminal Miscellaneous Petition before the High Court of Patna which by its order dated 19th of September, 2003 granted the bail to the petitioner subject to his furnishing a bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of the CJM, Hajipur.
However, even before the appellant could be released from custody pursuant to the bail granted by the High Court the complainant in the case moved an application before the High Court of Patna in Crl. Misc. No. 29702 of 2003 seeking cancellation of the bail granted to the appellant alleging that the appellant was an influential man and had been manipulating the investigation for the past ten years and was ultimately brought to trial only because of the change in the hierarchy of police i.e. when an impartial investigating agency came into picture. It was also urged that the appellant had suppressed material facts while obtaining the bail from the High Court in as much as the appellant did not disclose that in the connected criminal trial the co- accused have been found guilty of an offence under Section 302 etc. and that since the date of the appellant’s surrender pursuant to the direction issued by the High Court on 17th of July, 2003, the appellant and his musclemen have been threatening the witnesses and preventing the complainant from pursuing the case against the appellant. It was also stated in the said application for cancellation of bail that two complaints have already been filed in the Sadar Police Station, Hajipur on 10-10-2003 and 13-10-2003 alleging a threat by the appellant and his henchmen.
The High Court by the impugned order allowed the said application for cancellation of bail filed by the complainant on the ground that there was a threat to the prosecution witnesses by the appellant and his musclemen and that the appellant had not brought to the notice of the court that in the connected trial the two accused have already been convicted by the trial court and were sentenced to life imprisonment. The court in the impugned order also noticed that in the order granting bail it unfortunately failed to notice that the appellant was one of the two accused who were described as the active assailants.
Challenging the above order of cancellation of bail in this appeal the appellant contends that the High Court while canceling the bail has not borne in mind the well settled principles of law in regard to cancellation of bail and has approached the case as if it was hearing a bail application for the first time. It is also contended that the basis of the alleged threat which was taken note of by the High Court, i.e. the two complaints filed by the complainant dated 10-10-2003 and 13-10-2003 in Hajipur Police Station could not have been genuine in as much as on the date when these two complaints were filed, the appellant was, as a matter of fact, in custody and was only released pursuant to the bail granted by the High Court on 15-11-2003 nearly a month after the two alleged complaints of threat were lodged, hence, no reliance could have been placed on such a pre planned complaint. It is also submitted on behalf of the appellant that though the appellant was included in the First Information Report filed in the year 1993, the investigating agency could not find any material against the appellant, hence no charge-sheet was filed against the appellant for nearly 10 years until the same was done on 11-7-2003, this too because of the fact that that the investigating Police officer was annoyed with the appellant because of a privilege motion brought against the said police officer in the assembly at the instance of the appellant as a Member of the Legislative Assembly, in which the said police officer had to tender an apology.
Learned counsel for the State as well as for the complainant in rebuttal submitted that the appellant being a very influential person has managed with the investigating agency to keep himself out of the trial all these years and because of the efforts of a good police officer he has at last been charged for a heinous crime and if he is let out on bail there is every possibility of his interfering with the fair trial, therefore, the High Court was justified in canceling the bail. It is also pointed out that since the Sessions court in the connected trial has convicted two persons for life imprisonment and in the evidence adduced in that trial found material against the appellant of his involvement in the crime. This is not a fit case in which the appellant should be granted bail.
Having considered the argument advanced on behalf of the appellant and respondent, we think the High Court was not justified in considering the application for cancellation of bail as if it was an application for grant of bail. Consideration of an application for grant of bail stands on a different footing than one for cancellation of bail. Grounds for cancellation of bail should be those which arose after the grant of bail and should be referable to the conduct of the accused while on bail, such is not the case made out in application for cancellation of bail. Of course, the complainant had alleged in the petition for cancellation of bail that the witnesses in the case had received threats from the appellant and his henchmen, this is supported by two complaints filed by him before the police dated 10-10-2003 and 13-10-2003. But as contended by the learned counsel for the appellant these two complaints cannot be accepted ex-facie because on the dates mentioned in those complaints the appellant was still in jail and was not yet released on bail though the High Court had granted him bail, therefore, the question of the appellant administering threats to the witnesses as alleged by the complainant cannot be accepted. The next ground on which the High Court considered it appropriate to cancel the bail is the fact that the appellant had not brought to its notice that in the connected trial, two of the co-accused had been convicted for an offence punishable under Section 302. This fact has been denied by the appellant before us by pointing out from his bail application wherein para 10 he had specifically mentioned about the conviction of the two accused persons. Be that as it may, it was the duty of the prosecution to have brought this fact to the notice of the High Court and the appellant cannot be held guilty of suppression of that fact. The 3rd ground on which the bail was cancelled is an error committed by the court itself in not noticing the fact that in the judgment of the trial court in the connected matter the trial court found material as to the participation of the accused in the offence. We are of the opinion that this also cannot be a ground for canceling the bail already granted which was not challenged by any person be it the prosecution or the complainant. The factum that the learned Sessions Judge in the judgment convicting the two co-accused expressed certain views as to the involvement of the appellant in this crime cannot be a ground to cancel the bail. As contended by the learned counsel for the appellant if really there was such material against the appellant before the Sessions court in that trial the procedure contemplated under Section 319 of Cr.PC could have been invoked either by the complainant or the court itself which having not been done, at this stage that observation of the learned Sessions Judge or the evidence given by the witnesses in that trial in which appellant was not an accused can be construed as material sufficient to cancel the bail.
Learned counsel for the respondent then pointed out that the appellant was absconding since the date of incident, hence, investigation as against him could not be concluded for the last many years, and if he is released there is a possibility of he again absconding. This argument, in our opinion, runs counter to the material on record. Since the filing of the complaint in the year 1993, 7 earlier charge- sheets were filed against various accused mentioned in the complaint and in all these charge-sheets, last of which was on 31.3.2003, the appellant’s name was shown in Col.No.2 as an accused against whom investigation was still being conducted. In the said charge-sheets, he was not shown as an absconder. That apart there is material on record to show that the appellant has been elected to the Legislative Assembly in the year 2000 and again in the year 2005, and has been attending the Assembly proceedings till he surrendered in the year 2003. If that be so, the allegation of abscondence in past or the likelihood of abscondence in future cannot be accepted. As a matter of fact that for nearly 10 years and after filing 7 charge-sheets, the investigation did not find sufficient material to include the appellant as an accused in those 7 charge-sheets is an indicator of the fact that for all these years the investigation agency could not find material against the appellant.
Therefore, we are satisfied that the cancellation of bail by the impugned order, by the High Court is unsustainable. However, taking into consideration the apprehension of the complainant that the appellant by using his power as member of the Legislative Assembly might interfere in the trial or try to influence the witnesses in the case, we feel it appropriate to direct the appellant not to enter the territorial jurisdiction of Hajipur Sub Division of District Vaishali except for the purpose of attending the trial. If for any reason it becomes imperative for the appellant to visit Hajipur then he shall do so after informing the investigating agency in the case. This condition shall be in addition to the conditions imposed by the High Court for granting bail as per its order dated 19-9-2003.
For the reasons stated above, we allow this appeal, set aside the impugned order of the High Court and restore that of the High Court dated 19-9-2003 granting bail to the appellant.
We make it clear that whatever conclusion we have expressed in this order of ours is purely prima facie and for the limited purpose of finding out whether the impugned order of the High Court is sustainable or not. The trial court shall not be in any manner be influenced by these observations of ours or that of the High Court made in the course of the order granting bail or order canceling bail. Appeal allowed.