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.