BALVANTJI HALAJI PALVI DARBAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. Learned A.P.P. Mr.Kodekar waives service for the respondent State.

(2.) This application for bail under section 439 of the Code of Criminal Procedure is filed by the petitioner against whom the warrant for arrest was applied for on 26.4.2002 and, according to the applicant, he was arrested only on 30.11.2002. The F.I.R. dated 2.3.2002 registered as C.R. No.26 of 2002 in Deodar Police Station reported horrible instances of communal violence in which, as revealed afterwards, 11 men, 3 women and 2 children were killed and 38 other persons were seriously injured. During the course of investigation, the petitioner's presence in the mob, which is alleged to have committed the carnage, was indicated by more than one witness. According to the statement of one Ms.Havriben recorded on 5.3.2002, the petitioner was, along with several other named persons, found to be operating with deadly weapons in the mob and the daughter of that witness subsequently succumbed to her injuries, according to the postmortem note dated 9.3.2002. It was also pointed out by the learned A.P.P. that the petitioner was absconding after registration of the offence and warrants could also not be served on the petitioner for a considerable length of time. It was also pointed out by the learned A.P.P. that in a panchnama made under section 27 of the Evidence Act, weapons were recovered at the instance of the petitioner.

(3.) Learned counsel Mr.V.S.Modi vehemently argued that several other accused persons alleged to be involved in the same incident have been released by various orders of this Court and, therefore, the petitioner should be released on the ground of parity. The learned counsel produced almost a dozen orders of this court, in which, according to him, co-accused were released on bail. He, however, fairly conceded that in most of those cases, the advocates had not pressed for a reasoned order and no ground whatsoever of exercising the discretion in favour of the petitioners was discussed at the request of the parties. Apart from that, parity cannot be pressed only on the basis of similarity in the role ascribed to the different accused persons since decision on a bail application depends on several other factors, including the personal circumstances of the accused person and his record of behaviour before and after commission of the offence. Therefore, strictly speaking, the rule of parity can be applied only in cases where not only the role in the particular offence is found to be similar but the circumstances of the petitioner and other relevant factors are at par. In that view of the matter, the emphasis of the learned counsel that several other persons allegedly involved in the same offences were released on bail by various orders of this court loses its appeal.