Tuesday, 9 April 2013

bail on parity ground

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Bail on Parity Ground.


Manoj Kumar Sharma vs State Of Chhattisgarh on 8 March, 2010
Misc Criminal Case 507 of 2010
Manoj Kumar Sharma
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Mr Satish L Maneshinde ,Mr Sunil Otwani ^ Mr Ashish Shukla
CORAM: Honble Mr T P Sharma J
Dated: 08/03/2010
: JUDGEMENT
ORAL ORDER
Application under Section 439 of the Code of Criminal Procedure 1973
1. I.A.No.1, application for taking documents on record, is allowed. Documents are taken on record.
2. The applicant has filed this application under Section 439 of the Cr.P.C. for grant of regular bail, as he is in custody in connection with Crime No.377/2009 (Sessions Trial No.16/2010 pending before the Sessions Judge, Korba), registered at Police Station Balco, Korba, Distt. Korba, for the offence punishable under Sections 304 read with Section 34, 326 & 324 of the I.P.C.

3. I have heard learned counsel for the parties and perused the case diary.

4. This is the second bail application filed on behalf of the applicant for grant of regular bail. The application is supported by the affidavit of R.P. Sharma, co-brother-in-law of the applicant. First application filed on behalf of the applicant has been rejected by this Court vide order dated 11-11-2009 passed in M.Cr.C.No.2500/2009.
5. Mr. Satish L. Maneshinde, learned counsel for the applicant, submits that this is the second bail application filed on behalf of the applicant for grant of regular bail after dismissal of first bail application, on the following grounds/change in circumstances: -
(1) That, after dismissal of first bail application, the prosecution has filed charge sheet on 3-1-2010. (2) That, before filing of charge sheet, other co-accused persons namely, Deepak Narang, Anup Mahapatra & Viral Mehta had filed applications before this Court for their release vide Misc. Criminal Case Nos.2863/2009, 2864/2009 & 2866/2009, respectively, which were rejected by this Court vide order dated 17-12-2009. Thereafter, they have filed applications for bail before the Apex Court and the Apex Court has released them on bail vide order dated 19-2-2010. (3) That, the State Government has asked report from National Council for Cement and Building Materials which has submitted its report on 4th January, 2010 and found that the material used for construction was not below standard and was within the limit prescribed. The report so submitted by National Council for Cement and Building Materials has not been filed by the prosecution along with the charge sheet and the prosecution has deliberately concealed the report which is in favour of the accused.
(4) The applicant is entitled for bail on the ground of parity and equal treatment.
6. Mr. Satish L. Maneshinde, learned counsel for the applicant, further submits that after rejection of bail application of the applicant herein by this Court, other three accused persons have filed applications for bail before this Court which have been rejected and finally they have been enlarged on bail by the Apex Court. Although the Apex Court has not assigned detailed reasons for granting bail to them, but the Apex Court has specifically mentioned that upon hearing learned counsel for the parties in the facts and circumstances of the case, the petitioners be released on bail to the satisfaction of the trial Court, which reveals that the Apex Court has considered the grounds which have been taken by the co-accused persons in the S.L.P. Co-accused persons have taken elaborate grounds in their petition before the Apex Court which have been mentioned in the S.L.P. viz., the co-accused persons were not incharge of the work; they were not present at the time of commission of the offence; they have not deliberately or intentionally committed any act of causing death of the persons; at the worst it may be the case of "industrial accident" and they were not liable for any criminal act. All these grounds have been considered by the Apex Court while granting them bail. Therefore, the applicant herein whose first bail application has been rejected by this Court and after filing of charge sheet whose bail application has been dismissed by the Sessions Judge only on the ground of seriousness of the offence, is entitled for equal treatment on the ground of parity. Mr. Satish L. Maneshinde, learned counsel for the applicant, strongly submits that filing of charge sheet, obtaining certificates from different institutions, grant of bail to other co-accused persons by the Apex Court are substantial changes in the circumstances and the Court is competent to re-appreciate the grounds which have been argued earlier and the grounds which he is raising today in the second bail application. Learned counsel also submits that he has elaborately taken new grounds in addition to the old grounds already taken in the first bail application viz., paras 6.15 to 6.17 of the instant bail application that the Company in-charge of construction work was BALCO not GDCL; GDCL was only the executing Company which has carried out the work; the applicant herein was posted as Site Manager and in accordance with the Power of Attorney he was authorized to sign certain papers and not authorized to control the work and it may be the case in which liability may be fastened on the applicant as vicarious liability which is not applicable in criminal justice. Learned counsel placed reliance in the matter of Babu Singh and others v. The State of Uttar Pradesh1 in which the Apex Court has held that application for bail rejected at earlier stage - Order refusing bail does not bar fresh application on later occasion giving more details, further developments and different consideration. At the time of grant of bail the Court is required to consider the following circumstances: -
(1) The nature of the accusation
(2) The nature of the evidence in support of the accusation (3) The severity of the punishment which conviction will entail.
In the present case, there is no likelihood of absconding of the applicant or fleeing from justice and nature of accusation is not so serious. Learned counsel further placed reliance in the matter of Sureshchandra Ramanlal v. State of Gujarat and another2 in which the Apex Court has held that co-accused is entitled for equal treatment and is entitled for bail on the ground of parity. Learned counsel also placed reliance in the matter of Izharul Haq Abdul Hamid Shaikh and another v. State of Gujarat3 in which while dealing with the question of parity, the Apex Court has enlarged other co-accused on bail.

7. On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, vehemently opposes the application and submits that first bail application of the applicant has been rejected by this Court on merits and after dismissal of first bail application there is no change in the circumstances, only filing of charge sheet is not change in the circumstances. While granting bail to other co-accused persons who are officers of BALCO, the Apex Court has not assigned grounds, even otherwise, the officers of GDCL working at the site are substantially liable for punishment because, they were executing the work assigned to them by BALCO through SEPCO. The act attributed to the applicant herein is not similar to that of the other co-accused namely, Deepak Narang, Anup Mahapatra & Viral Mehta to whom the Apex Court has granted bail. Therefore, in absence of any change in the circumstances, the applicant is not entitled for bail.
8. This is the second bail application after dismissal of first bail application by this Court on 11-11-2009. The applicant is entitled for bail in case of change in the circumstances and second bail application is maintainable in case of change in the circumstances. While dealing with the question of maintainability of second bail application and change in the circumstances, the Apex Court in the matter of Babu Singh (supra) has held that
"2. Briefly we will state the facts pertinent to the present petition and prayer and proceed thereafter to ratiocinate on the relevant criteria in considering the interlocutory relief of bail. Right at the beginning we must mention that at an earlier stage, their application for bail was rejected this Court on September 7, 1977. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not overturing an earlier negation. In this view, we entertain the application and evaluate the merits pro and con."
Further, while dealing with the question of grant or refusal of bail, the Apex Court in the above cited matter has held that the test should be applied by reference to the following considerations: -
(1) The nature of the accusation
(2) The nature of the evidence in support of the accusation (3) The severity of the punishment which conviction will entail.
While dealing with the aforesaid question, the Apex Court has further held in para 17 of the above judgment that "Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected."
9. As held by the Apex Court in the matters of Sureshchandra & Izharul (supra), co-accused is entitled for equal treatment on the ground of parity.

10. In the present case, the Apex Court has granted bail to the co-accused persons who are officers of BALCO, the main construction company which entered into agreement with SEPCO for construction of chimney and SEPCO in turn, entered into agreement with GDCL for construction of chimney. GDCL was constructing the chimney and the applicant herein was Site Manager and was present on the spot at the time of alleged incident. The Apex Court while granting bail to the officers of BALCO has held thus,
"Heard learned counsel for the parties. In the facts and circumstances of the cases, petitioners be released on bail to the satisfaction of the Trial Court."
11. The applicant herein was working with GDCL which was constructing the chimney and he was Site Manager present on the spot. After considering the role attributed to the applicant and the circumstances, first bail application of the applicant has been rejected on merits vide order dated 11-11-2009. The role attributed to the other co-accused persons who are officers of BALCO is not similar to that of the applicant herein. It is needless to say that after rejection of first bail application on merits no different consideration would be possible. Mere filing of charge sheet is not change in the circumstances. On due consideration, I do not find any change in the circumstances or entitlement of the applicant for bail on the ground of parity. Consequently, the second bail application is also rejected, at the admission stage itself.
JUDGE

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