# Nirmala v. State of U.P. Opp. Party 1086 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2022) 4 ILRA 1085 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-04-27 - **Case number:** Crl. Misc. Bail Application No. 12363 of 2021 - **Bench:** Rajesh Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirmala-v-state-of-u-p-opp-party-1086-indian-law-reports-allahabad-series-48376 - **Pages:** 5 ## Headnote G.A. A. Parity-Applicant is entitled ot be released on bail on the ground of parity by moving second or third or any other bail application in a circumstances that at a later date a co-accused of the same criminal case with a similar role was granted bail. Application rejected. (E-11) List of Cases cited:- Nanha Vs St. of U.P. 1993 Crl.L.J. 938 ## Text 4 All. Nirmala Vs. State of U.P. 1085 13. The victim/prosecutrix in her statement recorded under Section 164 Cr.P.C. has categorically informed that the present applicant committed oral sex with her. The victim/prosecutrix was about 8 years at the time of incident, therefore, at the stage of bail, it cannot be presumed that she has given such statement under the influence of her parents. Besides, the medical examination report supports her allegation wherein it has been verified that the penis was penetrated in the mouth of the victim/prosecutrix. 14. To me, mere long detention in jail does not entitle an accused for bail. Further, it all depends on the facts and circumstances of each case as there is no straight jacket formula for granting bail. Therefore, period of long incarceration may be considered as one of the grounds for granting bail, but it depends upon facts and circumstances of the particular case. The Hon'ble Apex Court in re; Rajesh Ranjan Yadav v. CBI through its Director, (2007) 1 SCC 70, has observed as under:- "...... None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail." 15. Considering the totality of the facts and circumstances of the issue in question, medical examination report, statement of the prosecutrix recorded under Section 164 Cr.P.C. and the provisions of law i.e. Section 375 IPC, Section 3 (a) and Section 4 of POCSO Act, I do not find any substance in the arguments of learned counsel for the applicant, looking to the peculiar facts and circumstance of the present case, that the applicant has already served about four years and seven months' period in jail, so he may be enlarged on bail considering his period of incarceration. I am conscious about the fact that the guilt of any person can be established before the learned trial court and no observation should be given affecting the trial, but on the basis of aforesaid material available on record, prima facie, I am not inclined to grant bail to the present applicant. 16. Accordingly, the bail application is rejected on merits. 17. Before parting with, it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest. 18. Let the copy of this order be provided to the learned trial court through District & Sessions Judge, Lucknow by the Registry of this Court within a week for its compliance. ---------- (2022)04ILR A1085 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 27.04.2022 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN, J. Crl. Misc. Bail Application No. 12363 of 2021 Nirmala ...Applicant Versus State of U.P. ...Opp. Party 1086 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Applicant: Naresh Chandra, Paltoo Ram Gupta Counsel for the Opp. Party: G.A. A. Parity-Applicant is entitled ot be released on bail on the ground of parity by moving second or third or any other bail application in a circumstances that at a later date a co-accused of the same criminal case with a similar role was granted bail. Application rejected. (E-11) List of Cases cited:- Nanha Vs St. of U.P. 1993 Crl.L.J. 938 (Delivered by Hon'ble Rajesh Singh Chauhan, J.) 1. Heard Sri P.R. Gupta, learned counsel for the applicant and Ms. Kiran Singh, learned A.G.A. 2. This is the second bail application. First bail application was rejected on 18.3.2021 by Hon'ble Vikas Kunvar Srivastav, J. vide Bail No.3356 of 2021. 3. In view of the order of Hon'ble the Chief Justice dated 13.11.2018, if the Hon'ble Court, which has rejected the bail application of an accused, is not sitting at the place where subsequent bail application has been filed, the same shall be put up before the regular Court, therefore, this bail application has been put up before the regular Court. It has been noted that the Hon'ble Court, which has rejected the first bail application, is presently not sitting at Lucknow where this second bail application has been filed. 4. As per Sri Gupta, the present applicant, who is a lady, is in jail since 24.11.2020 in Case Crime No.0206 of 2020, under Sections 147, 323, 302/34, 336 & 506 IPC, Police Station ? Asoha, District ? Unnao. 5. Sri Gupta has submitted that he is conscious about the fact that he cannot raise any arguments or take any ground in the second bail application, which could have been taken in the first bail application, therefore, he shall not be repeating any arguments or grounds, which have already been considered by this Court while rejecting the first bail application of the present applicant on 18.3.2021. 6. Sri Gupta has submitted that he shall be pressing this second bail application on the solitary ground that after rejection of bail application of the present applicant on 18.3.2021, this Court granted bail to coaccused Bahadur in Bail No.7523 of 2021 on 5.10.2021. Further, other co-accused persons, namely, Bablu has been granted bail in Bail No.5287 of 2021 on 9.11.2021; Kamal has been granted bail in Bail No.12888 of 2021 on 22.11.2021 and Deepu has been granted bail in Bail No.8149 of 2021 on 7.12.2021 as orders of those accused persons have been shown to the Court, which are taken on record. 7. Sri Gupta has drawn attention of this Court towards the decision of Division Bench of this Court in re; Nanha S/O Nabhan Kha vs. State of U.P., reported in 1993 CriLJ 938, wherein the question was considered as to whether any accused may be entitled for bail in his/her subsequent bail application, if after rejection of his/her bail, the other coaccused persons have been granted bail. In para-1 of the judgment, the aforesaid question has been indicated, which reads as under:- 1. In the third bail application moved by the petitioner for bail in case Crime No. 4 All. Nirmala Vs. State of U.P. 1087 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 coaccused 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." 8. While replying the aforesaid question, the Devision Bench of this Court in re; Nanha (supra) has observed in paragraphs 53 & 58 as under:- "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 Vs. State of U.P. 1987 Criminal Rulings 30, this Court observed that a co-accused having similar role having been granted bail another coaccused 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 1987 Rai 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. 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 1088 INDIAN LAW REPORTS ALLAHABAD SERIES 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." 9. The aforesaid question was replied in favour of the accused in para-61 of the case in re; Nanha (supra), which reads as under:- "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." 10. In the light of aforesaid judgment, learned counsel for the applicant has tried to demonstrate the impugned FIR wherein general role has been assigned against all five accused persons including the present applicant and no specific role has been assigned to the present applicant, therefore, even as per the prosecution, since the present applicant has been attributed the general role and no specific role has been attributed to her, her case may be considered on the principles of parity. Besides, the present applicant being a lady, she may be extended the benefit of Section 437 Cr.P.C. considering her period of incarceration in jail i.e. about one year and six months. He has further submitted that charge sheet has already been filed, therefore, there is no apprehension of absconding or tampering the evidence or witnesses. He undertakes that the applicant shall co-operate with the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order. 11. Learned A.G.A has, however, opposed the prayer for bail but he has not disputed the aforesaid submissions of learned counsel for the applicant. 12. Considering the fact that in the FIR, general role has been attributed to all accused persons including the present applicant and co-accused persons, namely, Bahadur, Bablu, Kamal and Deepu have been enlarged on bail, therefore, on the basis of principles of parity, the present applicant may be enlarged on bail. Besides, the applicant being a lady is entitled for the benefit of Section 437 Cr.P.C. Therefore, further considering the decision of the Division Bench of this Court in re; Nanha (supra) wherein various decisions of the Hon'ble Apex Court have been considered, I find that question of the present case i.e. consideration of second bail on the ground that subsequent to rejection of the bail of the present applicant, other co-accused persons have been granted bail is squarely covered, therefore, this is the more reason to grant bail to the present applicant. Accordingly, without entering into merits of the case, the bail application is allowed. 4 All. Bhaiya Ram Vs. State of U.P. 1089 13. Let applicant- Nirmala be released on bail in the aforesaid case crime number on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against her in accordance with law. (v)The applicant shall not leave India without previous permission of the court. ---------- (2022)04ILR A1089 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 25.04.2022 BEFORE THE HON'BLE RAJESH SINGH CHAUHAN, J. Crl. Misc. Bail Application No. 2610 of 2022 Bhaiya Ram ...Applicant Versus State of U.P. ...Opp. Party Counsel for the Applicant: Ravi Shankar Mishra, Pranav Trivedi Counsel for the Opp. Party: G.A. A. Delay in Trial.-- Period of long incarceration of the applicant, poor progress of trial despite the specific direction by the Court, all fact/material witnesses have been examined and there is no likelihood to conclude the trial in near future. Application allowed. (E-11) List of Cases cited:- 1. U.O.I.Vs K.A. Najeeb AIR 2021 SC 712 2. Paras Ram Bishnoi Vs Director, C.B.I. Criminal Appeal No. 693/2021(arising out of SLP(Criminal) No. 3610/2020 3. Saudan Singh Vs St. of U.P. Criminal Appeal No. 308/2022(arising out of SLP(Criminal) No. 4633/2021) 4. Gokarakonda Naga Saibaba Vs St. of Mah. (2018)12 SCC 505 (Delivered by Hon'ble Rajesh Singh Chauhan, J.) 1. Heard Sri Ravi Shankar Mishra, learned counsel for the applicant and Sri Hans Raj Verma, learned A.G.A. for the State.