KAILASH & ORS. Vs. STATE OF M.P.

JUDGEMENT

(1.) ALL the three applications (M. (cr) P No. 1125/01, 1126/01 and 1052/01) are being taken up together for hearing and disposal by this common order although they are concerned with two different cases, as common question of law is involved for consideration therein. In criminal Appeal No. 473/97, earlier application of appellant -accused Manoj was dismissed vide the order dated 13.10.1999, looking to the facts and circumstances and the role assigned to the appellant Manoj. However, in case of appellant -accused Kailash his earlier application for bail was dismissed by this court vide the order dated 23.2.2001, taking into consideration the facts and circumstances brought on record Including the deposition of widow of deceased Bhuria (P.W.2) who was an eye witness and the other eye witnesses who have been relied upon by the trial court and other relevant facts and circumstances and further that no exeptional circumstance has been made out for the grant of release on bail as sought for in view of what has been indicated above including the observations of the Hon'ble the Apex Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and others reported in, AIR 2000 SCW 3602, one of us (Hon'ble Shri S.P. Srivastava, J.) was member of the Division Bench in both the above orders passed by this Court.

(2.) BOTH Kailash and Manoj have filed these subsequent bail applications for release on bail on the ground of parity with other co -accused Chhutkan, Laxman and Murari who were allowed bail vide the order dated 6.7.2001 mentioning therein "looking to the evidence available on record." Although on fact there seems to be parity between the role assigned to the present appellants and the co -accused Chhutkan, Murari and Laxman who were allowed bail. However, it seems to us that if the previous rejection orders of the present applicants would have brought to the knowledge of the Division Bench which passed the order dated 6.7.2001, the position of the earlier orders indicating consideration of a ruling of the Apex Court regarding non -availability of any exceptional circumstance might have been clarified. In Criminal Appeal No. 515/99, Gajraj's earlier, bail application was heard by a Division Bench comprising Hon'ble Justice Shri R.S. Garg and myself (Hon. Justice R.B. Dixit) and vide order dated 16.2.2000, the application was rejected "after going through the statements of the witnesses, the character of the evidence and the findings recorded by the trial court that after felling the deceased each of the accused caused injuries to the deceased, two of the accused throttled him and thereafter all the four accused threw him in the burning hutment."

(3.) NOW , the appellant -accused, Gajraj Singh by the present application claiming parity with co -accused Sohan Singh who was allowed bail by order dated 2.7.2001 by this Court on the ground "prima -facie it seems that the prosecution has not placed the genesis of crime properly and accurately before the Court. How the incident took place and where it took place has not been clearly mentioned by the prosecution witnesses which is an important aspect of the case and the possibility of the participation in the crime which is essential particularly when the injuries have been sustained by the accused party and both the groups have been examined by the same doctor." While considering the parity of Gajraj Singh with Sohan Singh we are not left with any doubt that he too is entitled to bail on the ground of parity. However, we feel that had the previous order of this court dated 16.2.2000 regarding "the character of the evidence and the finding recorded by the trial court that after felling the deceased each of the accused caused injuries to the deceased, two of the accused throttled him and thereafter all the four accused threw him in the burning hutment" had been brought to the knowledge of the Division Bench which passed order dated 2.7.2001 releasing Sohan Singh on bail the above two conflicting opinions would have been reconciled to some extent. While considering the present applications we were brought in some what embarrassing position in reconsidering our previous orders rejecting the bail of the present applicants though on the ground of parity as it transpires to us that had the previous rejection orders were brought to the knowledge of the Division Bench which allowed bail to co -accused persons, the conflicting opinions recorded by the Division Bench would have been reconciled to some extent. This necessitated hearing of the parties on the point of devising some method for future guidance so that the previously rejected bail orders may be brought to the knowledge of the Court for passing appropriate orders maintaining consistency with regard to similarly placed accused persons in a case.