Co-Accused Can't Claim Parity As Matter Of Right Just Because Other Accused Has Illegally Obtained Bail By Concealing Material Fact: Rajasthan HC

The High Court therefore held that the bail order secured by suppressing and concealing the statements recorded u/s 164 of CrPC is liable to be recalled and the bail granted to the accused Indira Kumari is cancelled.

Accordingly, the High Court directed the Superintendent of Police as well as SHO to take the accused in custody and subject her for trial.

Thereafter, the Single Bench of Justice Anoop Kumar Dhand went on to observe that “It is the settled proposition of law that the principle of parity is based on positive equality. If any illegality has been committed by any individual or any wrong order has been passed by a judicial forum, the other person cannot claim the same parity as a matter of right and cannot ask the court to pass the same order by repeating or multiplying the same illegality or for passing a similar wrong order”. (Para 25)

While emphasizing that the principle of parity can't be applied universally or as a straight-jacket formula, the Bench clarified that simply parity cannot be the sole criteria for grant of bail, if after scrutiny and examination of the record, the facts comes on the record that correct facts and evidence were not brought into the notice of the Court when indulgence of bail is granted to the co-accused.

Facts of the case:

Pursuant to murder of one Ganesh Sharma in an incident in the year 2023, his brother Anil Sharma lodged a police report alleging that his brother Ganesh Sharma was last seen alive in the company of Anuj Pokharna, Pawan Meena & Rishabh, and that his dead body was found at the house of Anuj Pokharna. Based on suspicion, FIR stood registered for the offence u/s 302 & 34 IPC, which led to arrest of accused Indira Kumari along with co-accused Anuj Pokharna, Pawan Meena, and Rishabh. The accused Indira Kumari sought for regular bail portraying before this Court that there was no evidence against her. It was also pleaded that as per the statements of witnesses recorded u/s 161 CrPC, the deceased was last seen in the company of the other co-accused persons. Finding that the petitioner was not named in the FIR and statements of witness, the indulgence of bail was granted to her by this Court. Accordingly, the other co-accused persons based on the said order, had sought for bail only on the basis of parity that evidence against all the four accused was same.

Observations of the High Court:

The Bench shockingly found that even when the statements of the material last seen witness were recorded by the Judicial Magistrate u/s 164 CrPC during investigation and their statements were part of the chargesheet, the same were neither enclosed with the chargesheet annexed with the bail application nor supplied to the Public Prosecutor.

“Relying upon the concealed and suppressed incomplete chargesheet, indulgence of bail was granted to the accused Indira Kumari by this Court by treating her case as if there was no evidence of last seen against her with the deceased, whereas she was very much last seen in the company of the deceased along with other three accused persons when the incident of murder occurred”, added the Bench.

The Bench found that when the accused Indira Kumari was issued suo moto notices for cancellation of her bail, she replied that that she was under bonafide belief that she has sent complete documents for filing of her bail application, which is not at all satisfactory.

Finding that the chargesheet enclosed by the co-accused along with their bail applications, contained the statements of the last seen witnesses, the Bench emphasized that the accused Indira Kumari was also supposed to submit their statements along with the chargesheet submitted by her with her bail application.

Referring to the decision of Apex Court in the case of Moti Lal Songara Vs. Prem Prakash @ Pappu & Anr [(2013) 9 SCC 199], the Bench reiterated that if any order is obtained by suppression of facts, then it is an obligation of the Court to set aside the said order, and such person cannot be allowed to take advantage of such order.

Coming to the question of parity/ claim of negative equality by the co-accused persons claiming similar bail as that of the accused Indira Kumari, the Bench explained that if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.

The Bench emphasized that the law of parity would be applied in granting bail to an accused, where the co-accused has been granted bail on similar set of circumstances.

Law of parity is a desirable rule and is applicable where the case of the accused is identical with the co-accused who has been granted bail, and simply because the co-accused has been granted bail is in itself not a criterion for granting bail if the Court comes to the conclusions that the co-accused has been granted bail without consideration of the evidence available against him on the record, added the Bench.

Lastly, the High Court recalled the order granting bail to the co-accused Indira Kumari and rejected the bail claim of the petitioners on the ground of parity.

Counsel for Accused: Samarth Sharma, Om Prakash Pareek, Pankaj Gupta

Counsel for State: Imran Khan

Case Title: State Of Rajasthan vs. Indira Kumari

Case Number: S.B. Criminal Bail Cancellation Application No. 50/2024

Citation: 2024 LiveLaw (Raj) 96

Click here to read/ download the Order