Bharat Lal Singh @ Bhanu Singh Kharwar @ Bhanu Singh … v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No. 1919 of 2023 ----- Bharat Lal Singh @ Bhanu Singh Kharwar @ Bhanu Singh … … Appellant Versus The State of Jharkhand … … Respondent ------- CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Appellant For the Respondent : Mr. Ramesh Kumar, Advocate : Mr. V. S. Sahay, A.P.P. Order No. 06/Dated 15 February, 2024 ------ 1. The instant appeal preferred under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 02.08.2023 passed in Misc. Criminal Application No. 801 of 2023 by the learned Additional Sessions Judge – I, Garhwa in connection
Legal Reasoning
with Sessions Trial Case No. 165 of 2023 arising out of Bhandariya P. S. Case No. 06 of 2012 registered for the offence under Sections 147/148/149/341/342/364 /353/379/120(B) of the Indian Penal Code, Section 27 of the Arms Act, Section 17 of C.L.A. Act and Sections 38/39 of U.A.P., Act whereby and whereunder, the prayer for regular bail of the appellant has been rejected. 2. Learned counsel for the appellant has submitted that it is a case where the appellant has falsely been implicated and since long he has been languishing in 2 judicial custody. It has been submitted that the basis for implication of the appellant is the confessional statement of the co-accused person. The submission has been made that there is no allegation of committing offence under Section 302 IPC, although, it has come in the FIR that certain police personnel has been killed. The ground has been taken that identically accused persons have been directed to release on bail by different orders passed as appended to the Annexure – 2 to the paper book and one of the co-accused persons namely Devendra Paswan has been acquitted from the criminal liability pertaining to the present case. Learned counsel appearing for the appellant as on the aforesaid ground has submitted that it is a fit case where the impugned order may be interfered with.
Legal Reasoning
3. While on the other hand, Mr. V. S. Sahay, learned Additional Public Prosecutor appearing for the State of Jharkhand has vehemently opposed the prayer for bail of the appellant and has been submitted that the ground has been taken by the appellant that the identically co-accused persons have been granted bail said to be proper ground for interference in the impugned order, reversing, that the day when the co- accused persons have been granted bail at the time these offences were not made the scheduled offence. 3 Further while granting bail to such co-accused persons as per Annexure – 2 there is no consideration of the criminal antecedent. Herein against the appellant altogether 21 criminal antecedents are there. Hence, it is not a case of parity even accepting the order which has been passed in favour of the other co-accused persons directing them released on bail. So far as the allegation part is concerned that merely on the basis of the confessional statement, the appellant has been taken to custody that is incorrect in view of the paragraph of the case where the name of the appellant has been disclosed by the co-accused persons as would be evident from Para – 13, 15 and 16 of the supplementary case diary where the appellant has also confessed the crime and also disclosed about the involvement of the appellant in the present case. The Learned Additional Public Prosecutor based on the aforesaid grounds has submitted that the impugned order may not be interfered with. 4. We have heard the learned counsel for the parties, gone through the finding recorded by the learned court while considering the prayer for regular bail of the appellant, case diary and the criminal antecedent including the status report which has been called for vide order dated 09.01.2024. The appellant has taken 4 the grounds for interference with the impugned order; the first ground is that the allegation is based upon the confessional statement of the co-accused persons. 5. This Court is considering the issue of schedule offence as per the case diary and FIR after the occurrence having been taken place all the co-accused persons have been fled away from the place of occurrence. The recovery has been made to be there from the aforesaid place. None was apprehended from the place of occurrence but when some of the accused persons have been apprehended then they have disclosed the name of the other co-accused persons including the present appellant. 6. We are at this Stage deciding the admissibility of the confession so made by one of the co-accused persons, since, we are not dealing with the trial, rather, we have to see the involvement of the appellant in the commission of crime. 7. Herein, the allegation is levelled against Sections 147/148/149/341/342/364/353/379/120(B) of the Indian Penal Code, Section 27 of the Arms Act, Section 17 of C.L.A. Act and Sections 38/39 of U.A.P., Act. Therefore, what has been contended on behalf of the appellant that his involvement has come only on the basis of confession and hence, he is to be enlarged on 5 bail is not acceptable to this Court. The same is also due to the reason that against the appellant as per the antecedent report altogether twenty-one cases are pending against him. 8. The second ground has been taken that the some of the co-accused persons are said to have been granted bail. 9. There is no dispute about the position of law that even in considering the prayer for bail the parity of principle is to be followed as has been held by the Hon’ble Apex Court in the case of Tarun Kumar Versus Assistant Director Directorate of Enforcement reported in 2023 SCC OnLine SC 1486, wherein it has been held as under: “18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. 10. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established, reference in this regard may be taken from the judgment as rendered by 6 the Hon’ble Apex Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein, it has been held as under: “25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) “17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history- sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside. 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A- 10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.’’ 11. This Court is proceeding to examine the ground of parity based upon the aforesaid judgment. 7 12. It is evident that co-accused persons have been granted bail as per Annexure – 2 vide various orders dated 15.05.2014, 29.07.2015, 10.09.2015 and 06.10.2015 passed in B.A. No. 2864 of 2014, B.A. No. 4426 of 2015, B.A. No. 7041 of 2015 and B.A. No. 5848 of 2015 respectively. 13. This Court on perusal of the aforesaid orders it appears that there were no criminal antecedent of the accused persons. 14. Herein the facts of the case against the appellant altogether twenty –one cases are pending. 15. Therefore, applying the principle of parity, this Court is of the view that it is not the case where the cases of the co-accused persons are identically placed with the case of the appellant. As such, according to our considered view the principle of parity will not apply to the appellant in the present case. 16. Third ground has been taken that one of the co- accused persons have been acquitted namely Devendra Paswan and hence there is no likelihood of the conviction of the appellant even if the trial will be allowed to be proceeded, the laws were settled that the issue of acquittal cannot be taken into consideration for the purpose of enlarging the accused person on bail, reason being that so far as the issue of conviction/acquittal is concerned, the 8 same taken upon the testimony of the witnesses who are supposed to come and deposed in support of prosecution subject to cross-examination regarding the veracity of such witnesses. Meaning thereby, whether the judgment of conviction or acquittal that is the culmination after full fledge trial. Here we are not dealing with the issue of trial on consideration of the rival contention of the parties to be placed by way of testimony which is to be considered in the light of the provision of the Evidence Act, rather, we have to see the acquisition as available in the FIR and the material which has been surfaced in course of investigation as recorded in the case diary. 17. This court after considering the aforesaid grounds
Decision
and the impugned order is of the view that this is not a fit case to grant bail to the appellant. 18. Accordingly, the instant criminal appeal stands dismissed. (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Umesh/