MANOJ KUSHWAH Vs. STATE OF M P

JUDGEMENT

(1.) THIS is the second bail application under Section 439 of Cr.P.C. filed by the applicant on the ground that other accused persons have been enlarged on bail by this court.

(2.) EARLIER, the first bail application of the applicant was rejected by this court vide order dt. 1.8.2012 passed in M.Cr.C.No.4808/2012. In the aforesaid order, this court has made the following observations :- "One Sunil Rajawat had been brought into custody on 21-07/2011 at Police Station G.R.P., Gwalior (B.G.). The allegation is that he was beaten by the police personnels and due to the aforesaid act, he died. Subsequently, his dead body had been thrown into the river Chambal. The Special Railway Magistrate First Class, Mr.Jitendra Singh Kushwah conducted an enquiry and found that the aforesaid person was killed by the police personnels and thereafter, his dead body had been thrown into the river Chambal. Dead body was packed in a box and it had been carried out in a jeep. The applicant was also a party of the aforesaid police personnels. There is an evidence that the applicant had taken alongwith other co- accused persons the dead body of deceased in a box to the river Chambal. 2 M.Cr.C.No.7130/2012 Manoj Kushwah Vs. State of M.P. The argument advanced by the learned counsel for the applicant is that the applicant was working as Constable and there is no direct evidence available against the applicant, hence, he may be released on bail. However, in my opinion, the crime is serious in nature because a person was died in the police custody. Under Section 164 (5) of Code of Criminal Procedure, statements of the witnesses have also been recorded by the Judicial Magistrate and the involvement of the applicant in the crime has clearly been mentioned by the witnesses in their statements. Looking to the aforesaid facts of the case and also considering the fact that offence is in regard to commission of murder in the police custody and thereafter, concealment of the body of the deceased, in my opinion, this is not a fit case to enlarge the applicant on bail. Hence, I do not find any merit in this application. It is hereby rejected."

(3.) M.Cr.C.No.7130/2012 Manoj Kushwah Vs. State of M.P. 18. In our opinion, the same principle can be applied by the court while deciding the application of bail of an accused when the co accused has been granted the benefit of bail. Normally, if the order has been passed after considering all the relevant facts as mentioned by the Hon'ble Supreme Court and quoted above in this order by the court, then certainly another court is bound to grant same benefit to another co-accused whose case is similarly situated on the ground of parity. However, if those facts have not been considered by the court as mentioned by the Division Bench of this court in 1989 JLJ 323, then the court can refuse to grant benefit to the co-accused after recording reasons. On the basis of the above discussions, we answer the reference accordingly : "1. That the provisions made under Rule 57 Chapter X and Format 14, mentioning of particulars of bail applications of other co- accused persons, is not a mere formality. Those provisions have been made to maintain harmony in deciding similar bail applications. It is necessary to mention the facts in application filed under Section 328, 439 of Cr.P.C. as per rules. 2. That it is necessary for another Bench to consider the fact that the bail application of another co-accused similarly situated has been rejected earlier, but the order of rejection is not binding on the court. However, the court has to take into consideration the aforesaid fact and it would be obligatory on the court to mention the aforesaid fact in the order.