# Rajendra Nishad v. State of U.P

- **Citation:** (2013) 1 ILRA 392
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-11
- **Bench:** Virendra Vikram Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-nishad-v-state-of-u-p-42511
- **Pages:** 6

## Headnote

Code of Criminal Procedure.- 439-Grant
of Bail-seeking parity of co-accusedoffence
under
section
147/148/149/302/307/506 IPC- other
co-accused
granted
bail
without
disclosing conviction for murder and
attempt to murder-in view of provisions
of 437(ii) Cr.P.C.-not entitled for bail.

Held: Para-23

Having
considered
the
facts
and
circumstances of the case as also the
legal analogy the applicant who stood
convicted on two counts for the offences
like murder and attempt to murder can
not be allowed to be released on bail

Case Law discussed:
1993(3) ACC,281; 2001(2) JIC

## Text

392 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

11. In view of the aforesaid facts and
circumstances, I am of the opinion that the
order impugned does not require any
interference in exercise of writ jurisdiction.

12. The authorities below have
imposed penalty of Rs. 50,000/- in view
of the fact that the proper stamp duty was
not paid by the petitioners. There is no
finding that there was any intention on
part of the petitioners to evade payment of
proper stamp duty. The petitioners appear
to have acted bonafidely in assessing the
market value of the land as per its
agricultural nature as there was no
declaration under Section 143 of the U.P.
Z.A. and LR Act.

13. In these circumstances, the
imposition of penalty is not justified and
the same is deleted.

14. The writ petition is dismissed
modifying the impugned order by deleting
the penalty imposed.
---------

 ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2013
BEFORE
THE HON'BLE VIRENDRA VIKRAM SINGH, J.

Criminal Misc. Bail Application No. 11739
Of 2012

Rajendra Nishad

 ...Applicant
Versus
State of U.P.

 ...Opposite Party

Counsel for the Applicant:
Sri Siddharth Shukla, Sri I.K. Chaturvedi
Sri Pramod Kumar Sahni

Counsel for the Respondent:
A.G.A.,Sri A.K. Rai
Sri P.K. Srivastava, Sri Manish Tiwari

Code of Criminal Procedure.- 439-Grant
of Bail-seeking parity of co-accusedoffence
under
section
147/148/149/302/307/506 IPC- other
co-accused
granted
bail
without
disclosing conviction for murder and
attempt to murder-in view of provisions
of 437(ii) Cr.P.C.-not entitled for bail.

Held: Para-23

Having
considered
the
facts
and
circumstances of the case as also the
legal analogy the applicant who stood
convicted on two counts for the offences
like murder and attempt to murder can
not be allowed to be released on bail

Case Law discussed:
1993(3) ACC,281; 2001(2) JIC

(Delivered by Hon'ble Virendra Vikram
Singh, J)

1. Rajendra Nishad, the accused
facing trial for offence bearing Crime
No.958
of
2010
under
Section
147/148/149/302/307/506 I.P.C., Police
Station ,Barhalganj, District Gorakhpur,
has applied for his release on bail.

2. The prosecution version is that on
28.11.2010, at 4 O'clock in the evening,
while the complainant Ram Niwas along
with his cousin Raja Ram, Kanhaiya and
Sonu were coming back to their houses,
that on their way, they were intercepted
by seven accused, nominated in the F.I.R.
including
the
applicant.
On
being
exhorted, Nav Ratan fired upon Raja
Ram. Ramesh, Narsingh and the present
applicant indiscriminately fired with the
fire arms, they had, and caused injuries to
Kanhaiya and Sonu. Raja Ram was
brought to Gorakhpur District Hospital,
1 All] Rajendra Nishad Vs. State of U.P.
393
where he succumbed to the injuries
sustained by him.

3. About the motive to commit the
offence, it has been mentioned in the
F.I.R. that prior to this occurrence, on
24.9.2010, one Jitan Prashad, uncle of the
complainant was shot at by the accused
persons nominated in the present F.I.R.
and they were pressurizing to have a
compromise
or
to
face
the
dire
consequences thereof.

4. The applicant is also nominated as
accused in the F.I.R. The present bail
application has been pressed on the
ground that all the co-accused have been
enlarged on bail and the case against the
applicant is at par with the case of
Narsingh and Ramesh, who have been
granted bail by this Court and by court
below. Hence, on the ground of parity, as
also on the ground that the role of causing
fatal injury to Raja Ram has been
assigned to Nav Ratan alone, the prayer
for bail has been made.

5.

Learned
counsel
for
the
complainant and learned AGA have
vehemently opposed the application for
bail on the ground that there exists
criminal history against the applicant and
further that the applicant was previously
convicted in two different criminal trials
against him. It is proper to mention it here
that on behalf of the applicant, while
filing the affidavit of Vijay Kumar
Nishad, it has been conceded that in Case
Crime No.238 of 1991, under Sections
302,
201
I.P.C.,
Police
Station
Bahralganj, the applicant and co-accused
Ramakant
were
convicted
by
the
judgement dated 30.6.1998 and were
sentenced to undergo life imprisonment. It
has further been accepted that in Sessions
Trial No.403 of 1994 for offence under
Section 307 read with Section 34 I.P.C.,
the applicant and co-accused Ramakant
and Ramesh were convicted to undergo
rigorous imprisonment for five years with
stipulation of fine. It has been mentioned
that against both the convictions, appeal
was filed before this Court in which all
the appellants were ordered to be released
on bail. About the other criminal history
filed by the learned AGA and learned
counsel for the complainant, it has been
sweared in the affidavit that most of the
cases have ended in acquittal and in some
of the cases, the applicant is on bail.

6. Since the ground of parity has
been advanced, it is proper to mention it
here as to how the co-accused were
released on bail. The accused persons
Navratan and Matru were found to be
juvenile and they were released on bail
accordingly. Smt. Dudhiya was enlarged
on bail as she was a lady and further that
the role assigned to her was exhortation
only. Ramesh Nishad has been granted
bail by this Court. The other accused Nar
Singh and Ramakant have been granted
bail by the Sessions Judge, Gorakhpur.

7. The principle of release of bail on
parity has been considered in some of the
judgments
which
are
being
quoted
herewith.

8. In the case of Nanha Vs. State of
U.P., 1993 (3) ACC, 281, the Division
Bench of this Court has held that where
the case of co-accused is identically
similar and another co-accused has been
granted bail by the courts the said coaccused is entitled to be released on bail
on account of desirability of consistency
and equity. It has been held that law of
394 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
parity is desirable rule. Now question
arises whether on simple ground that the
case against the the two accused persons
being similar on merits alone, whether the
principle of parity can be applied without
ignoring other facts.

9. While granting bail to an accused,
the Court has not only to consider the
merits but has also to see whether there
exists any chance of the applicant to flee
from the course of justice and further that
whether there are any chance for the
applicant to influence or pressurize the
witnesses. Thus, simply on the ground
that evidence against the two accused
persons is similar, the accused can not
claim bail as right.

10. This Court in the case of
Amarnath Yadav Vs. State of U.P.,
2010(1) JIC, 422, (Allahabad) has held
that by granting of bail by one Bench to
any accused, another Bench is not under
obligation to grant bail to similarly placed
co-accused on the basis of principle of
parity without considering the merit. In
this case, the pronouncement of the Full
Bench of this Court in the case of Sunder
Lal Vs. State, 1983 CR.L.J., 736, was
considered wherein the principle of parity
was
declined
with
the
following
observation:-

"The learned counsel only pointed
out that by reasons of fact that other coaccused has been admitted to bail the
applicant should also be granted bail. This
argument alone would not be sufficient
for admitting the applicant to bail who is
involved in a triple murder case."

Granting of bail on the ground of
parity has again been considered and
refused in the case of Chander @ Chandra
vs. State of U.P., 1998 U.P. Criminal Rules,
263, whereby the Division Bench has held
that if bail has been granted in flagrant
violation of well settled principles, and the
order granting bail would not be in
accordance with law, such order can never
form the basis for a claim founded on
parity. It was held that in such case, it will
be open to the Judge to reject the bail
application of the applicant before him as
no Judge is obliged to pass orders against
his
conscience
merely
to
maintain
consistency.

11. The discussion made above
abundantly goes to show that principle of
parity apply when the case against the two
accused persons is similar in all respects
and further that the order granting bail to
co-accused was passed on well known
principles. It is again necessary that the
test provided for release of bail to both the
accused persons stand fulfilled and are
similar in both the two cases.

12. While considering the proposition of
law discussed above the present case is
being considered.

13. Smt. Dudhyia has been granted
bail by the Court of session on the ground
that she is a lady and the role assigned to
her is only that she exhorted and that she
did not participate at all in causing injury
to any person. Such is not the case against
the present applicant. Hence, he cannot
claim parity with the bail granted to the
co-accused Smt.Dudhiya.

14. The case against Navratan, coaccused definitely stands on a graver
1 All] Rajendra Nishad Vs. State of U.P.
395
footing as he has been assigned the role of
causing fatal injury to Rajaram. It is not
denied that Navratan and Mantu coaccused has been granted bail on the
ground that as they were declared
juvenile. Bail to juvenile has granted
under the provision of Section 12 of U.P.
Juvenile Justice (Care and Protection of
Children) Act, 2000 whereby grant of bail
is a rule and the same can be denied only
on
the
existence
of
the
grounds
enumerated therein. The section also
provides non-application of the provisions
of Criminal Procedure Code. Since the
bail of the present applicant has to be
considered under the provision of Cr.P.C.
alone, the grant of bail to Navratan and
Mantu shall be of no consequence in
favour of the applicant.

15. Bail of Ramakant is again of no
consequences to favour the applicant as
the same is distinguishable on merits. As
per version in the F.I.R., he has not taken
any positive role in commission of
offence. It is true that Rama Kant was a
previous convict but the bail order shows
that this fact has not been taken into
consideration by the Court even though
the fact is mentioned in the bail order.
Since the provisions of Sec. 437(ii)
Cr.P.C. were not taken into consideration
in this order, the same can also not come
to the rescue of the applicant.

16. It is not disputed that the
accused persons Ramesh, Narsingh and
the present applicant have been assigned
the similar role in the F.I.R. that they
indiscriminately fired causing injuries to
Kanahiya and Sonu.

17. The merits of the case against
the applicant appears to be distinguishable
on the ground of previous convictions
against him on two different counts. What
shall be the effect of the previous
conviction of the accused on the issue of
grant of bail, has been considered under
the provisions of Section 437 Code of
Criminal Procedure,1973 (to be referred
as Cr.P.C. herinafter). The relevant part of
the provision of Section 437 Cr.P.C. is
being quoted below:-

"437. When bail may be taken in
case of non-bailable offence-

(1) When any person accused of, or
suspected of, the commission of any nonbailable offence is arrested or detained
without warrant by an officer in charge of
a police station or appears or is brought
before a Court other than the High Court
or Court of Session, he may be released
on bail, but-

(i) such person shall not be so
released if there appear reasonable
grounds for believing that he has been
guilty of an offence punishable with death
or imprisonment for life;

(ii) such person shall not be so
released if such offence is a cognizable
offence and he had been previously,
convicted of an offence punishable with
death,
imprisonment
for
life
or
imprisonment for seven years or more, or
he had been previously convicted on two
or more occasions of a (a cognizable
offence punishable with imprisonment for
three years or more but not less than
seven years):

Provided that the Court may direct
that a person referred to in clause (i) or
clause (ii) be released on bail if such
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
person is under the age of sixteen years or
is a woman or is sick or infirm:

Provided further that the Court may
also direct that a person referred to in
clause (ii) be released on bail if it is
satisfied that it is just and proper so to do
for any other special reason."

18. In the case of Ram Prakash
Pandey Vs. State of U.P. and others,
2001 (2) JIC., page 681, the Apex Court
while considering the grant of bail to a
person who has previously been convicted
of
offence
punishable
with
life
imprisonment as is the case against the
applicant, has held as follows:-

"11. Thus a person who has been
previously convicted of an offence
punishable with life imprisonment shall
not be released on bail unless there is no
reasonable ground for believing that the
person has committed the offence and/or
there are special reasons to do so."

19. It is true that the case against the
co-accused Ramesh Nishad and Narsingh
stands on same footing as that the
applicant. Ramesh Nishad was convicted
for offence under Section 307 I.P.C. along
with the applicant and Rama Kant was
convicted for offence under Section
Section 302/34 I.P.C. along with the
applicant. The bail order of Ramesh
Nishad shows that previous conviction
against the applicant was never brought to
the notice of the Court and the bail
granted to co-accused Ramakant by the
Session
Judge,
Gorakhpur
though
mentions about the previous conviction of
Narsingh but no finding as provided under
Section 437 (ii) Cr.P.C. has been
considered, hence, these two bail orders
cannot help the applicant.

20. It has next been argued that in
both the two cases in which the applicant
was convicted, appeal has been admitted
for hearing by the High Court and the
applicant has been released on bail. At
this juncture, the question comes as to
whether the status of the applicant after
his release on bail remains as convict of
the case or not. In order to appreciate this
argument, provision of Section 389
Cr.P.C. needs be quoted.

"389.
Suspension
of
sentence
pending the appeal: release of appellant
on bail -

(1) Pending any appeal by a
convicted person, the Appellate Court
may, for reasons to be recorded by it in
writing, order that the execution of the
sentence or order appealed against be
suspended and, also, if he is in
confinement, that he be released on bail,
or on his own bond:

(Provided that the Appellate Court
shall, before releasing on bail or on his
own bond a convicted person who is
convicted of an offence punishable with
death or imprisonment for life or
imprisonment for a term of not less than
ten years, shall give opportunity to the
Public Prosecutor for showing cause in
writing against such release :

Provided further that in cases where a
convicted person is released on bail it
shall be open to the Public Prosecutor to
file an application for the cancellation of
the bail.)
1 All] Sadanand Vs. District Judge, Allahabad
397

(2) The power conferred by this
section on an Appellate Court may be
exercised also by the High Court in the
case of an appeal by convicted person to a
Court subordinate thereto.

(3) Where the convicted person
satisfies the Court by which he is
convicted that he intends to present an
appeal, the Court shall,-

(i) where such person, being on bail,
is sentenced to imprisonment for a term
not exceeding three years, or

(ii) where the offence of which such
person has been convicted is a bailable one,
and he is on bail, order that the convicted
person be released on bail unless there are
special reasons for refusing bail, for such
period as will afford sufficient time to
present the appeal and obtain the orders of
the Appellate Court under sub-section (1),
and the sentence of imprisonment shall, so
long as he is so released on bail, be deemed
to be suspended.

(4) When the appellant is ultimately
sentenced to imprisonment for a term or
to imprisonment for life, the time during
which he is so released shall be excluded
in computing the term for which he is so
sentenced."

21. A bare perusal of the provision
of Section 389 clearly goes to show that
the Appellate Court while admitting any
appeal for hearing suspends the execution
of the sentence and orders for release of
the appellant on bail but in such a
position, the order of conviction remains
intact until it is set aside by the final
verdict of the Appellate Court. Thus, the
status of the applicant despite the
admission of appeals and his release on
bail was that of convict and he cannot be
exonerated of the consequences provided
under Section 437 (ii) Cr.P.C.

22. The evidence in the present case is
that the accused persons in prosecution of
the common object of unlawful assembly
caused the death of Raja Ram and caused
fire arm injuries to two persons namely
Kanahiya and Sonu. Thus, no finding can
be recorded that there does not appear any
reasonable ground for believing that the
applicant is not guilty of the charges
levelled against him.

23. Having considered the facts and
circumstances of the case as also the legal
analogy
the
applicant
who
stood
convicted on two counts for the offences
like murder and attempt to murder can not
be allowed to be released on bail.

24. The application for bail is hereby
rejected. However the trial Court is
directed to proceed with the trial as
expeditiously as possible, keeping in view
the provisions of Sec. 309 CrPC,
preferably within a period of six months
to be computed from the date of
production of certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2013.

BEFORE
THE HON'BLE SABHAJEET YADAV,J.

Civil Misc. Writ Petition No.12954 Of 2003

Sadanand

 ...Petitioner
Versus
District Judge, Allahabad ...Respondent

Counsel for the Petitioner:
Sri Ashok Khare, Sri V.D. Chaohan