Kundan Singh, J.:— This is an application for bail on behalf of applicant satyendra singh in case crime No. 219 of 1994, under sections 147, 148, 149, 307, 302 and 504 I.P.C of police station Haldharpur, district Mau.

2. Heard Sri Rajesh Singh and Sri B.N Singh for the applicant, Sri Jagdish Singh Sengar for the complainant and the A.G.A for the state and also perused the relevant papers available on record. Learned counsel for the applicant also submitted written arguments later on.

3. According to the FIR version, the incident took place at about 8.00 A.M on 4.10.94 in front of the house of the informant Bhola singh in village abadi of kanso in which four accused caused fire arm injuries on the bodies of four persons. Out of them, two died on the spot, one in the way to hospital and the fourth one sustained gun shot injuries. FIR of the incident was lodged by the father of the deceased persons at 9.15 A.M on the same day i.e, 4.10.94 at police station Haldharpur district mau at a distance of 12 kilometres from the place of incident.

4. Learned counsel for the applicant has claimed bail to the applicant on the ground of parity inasmuch as accused Kamla Singh and Ram Asrey Singh have already been enlarged on bail by Hon'ble G.S.N Tripathi, J. vide his orders dated 26.2.96 and 10.5.96, respectively, though co-accused Bijendra Singh, who was also assigned similar role in the FIR has been refused bail by Hon'ble S.K Varma, J. on 22.3.96 When the fact of rejection of the bail application of co-accused Bijendra Singh was brought to the notice of the Court, the learned counsel for the applicant retorted that the principle of parity applies only to the grant of bail but not to refuse it.

5. As two learned single Judges of this Court have taken divergent views in the matter of grant and refusal of the facility of bail to three other similarly situate accused in the same case and the role assigned to the fourth accused Satyendra Singh, the applicant herein, is also identical, I felt necessity of getting through the entire record and the respective orders passed by my esteemed brothers. For proper appreciation of the controversy raised in the present bail application, the orders passed by both the learned Judges are quoted below chronologically:

6. Hon'ble G.S.N Tripathi, J.

“After hearing Sri J.S Sengar, the application is allowed. Let applicant Kamla Singh involved in case crime No. 219 of 1994 under Sections 147, 148, 149, 307, 302, 504 I.P.C, P.S Haldharpur district Mau be released on bail on his furnishing a personal bond and two sureties, each in the like amount, to the satisfaction of C.J.M Mau.”

Dated: 26.2.96

Sd/- G.S.N.T

Hon'ble S.K Verma J.

“Heard learned Counsel for the parties.

Three sons of the complainant were murdered as per the first information report on 4.10.1994 at about 8.00 A.M The report was lodged at 9.15 A.M in police station Haldharpur, district Mau. There is an injured eyewitness also, namely Ganga Singh whose presence cannot be doubted. The applicant was armed with a fire-arm and there are gun shot wounds on the persons of the three victims.

Parity was been claimed because one of the accused, namely Kamla Singh has been granted bail by this Court vide order dated 26.2.1996 in bail application No. 2134 of 1996.

Ordinarily, enlargement of co-accused on bail would be a sufficient ground for not denying similar concession to other co-accused provided that the nature of accusation and availability of evidence is also similar and in the matter of other considerations, such as age, likelihood, of the accused facing the trial etc., also the cases are similar. Otherwise, it cannot be followed as a matter of rule that the enlargement of co-accused on bail should implicitly bind the court in enlarging other co-accused on bail. Distinguishing features may entail distinct results. (1) (State v. Jagjit Singh . AIR 1962 S.C 253., Kalyan Singh v. State of Madhya Pradesh . 1989 Cr. L.J page 512.).

The bail order in respect of co-accused Kamla Singh does not disclose any reason on the basis of which bail was granted to him. There may be several reasons on the basis of which bail may be granted to an accused and may be refused to another accused of the same case such as illness, old-age, infirmity, physical invalidity, mental condition, sex and criminal history of the particular accused.

Having considered the submissions made by the learned counsel for the parties, I do not find it a fit case for bail so far as the applicant is concerned.”

Dated: March 22, 1996.Sd./- S.K.V

Hon'ble G.S.N Tripathi, J.

“Co-accused Kamla Singh similarly placed has been bailed out.

Let applicant Ram Asrey Singh be released on bail on his furnishing a personal bond with two sureties, each in the like amount to the satisfaction of C.J.M Mau in case Crime No. 219 of 1994 under Sections 147, 148, 149, 307, 302, 504 I.P.C, P.S Haldharpur, district Mau.”

Dated: 10.5.96Sd./- G.S.N.T

7. On a bare reading of the orders of brother Tripathi, J. It would be evident that he has not given reason in either of the two orders white granting bail to the two similarly situate co-accused. Of course, the Court is not required to record reasons for granting the facility of bail to the accused. But since in the present case crime there are two conflicting orders of granting and refusing bail to the similarly placed co-accused, I felt necessity making mention of the absence of reasons in the orders of brother Tripathi, J. to indicate that it is not clear from his orders as to what weighed with him for granting bail to similarly placed co-accused Kamla Singh and Ram Asrey Singh.

8. Learned counsel for the applicant submitted that he had pressed three points before Hon'ble Tripathi, J. According to him, the first point raised was that the eye-witness account was inconsistent with the medical evidence inasmuch as the firing is said to have been resorted to from a distance of 13 steps (near about 30 feet) as mentioned in the inspection report prepared by the Investigating Officer but the injuries on the bodies of the three deceased and the injured person contained blackening, scorching, charring and tattooing, which could have been a result of firing from a distance of not more than six feet. The second submission, which he allegedly made, was that two accused persons are said to have wielded lathi and spade but there was not a single injury on the person of the three deceased and the injured of those weapons. The last and the third argument which he allegedly made before Hon'ble Tripathi, J. was that semi digested food was found in the stomach of the deceased persons at the time of their post-mortem examination. That situation, according to him, was not possible at the time of incident inasmuch as nobody takes food at 4 or 5 A.M and hence the incident had not taken place at the time and in the manner alleged by the prosecution.

9. I have closely examined the above submissions of the learned counsel which he is said to have made before my esteemed brother Tripathi, J. in the light of the evidence available on record and I would deal with them one by one.

10. So far as the first contention of the learned counsel is concerned, it may be mentioned that in the FIR there is clear recital that the deceased persons were preparing mud tubs when the accused persons variously armed came at the venue. Abusing them one of the co-accused exhorted his companions to kill all of them and eliminate their entire family. At this juncture, probability cannot be excluded that the deceased and the other persons might have advanced towards the accused persons reprimanding the accused persons for hurling abuses on them and challenging to eliminate their families and if the firing had been resorted to at that stage, the injuries of the nature as mentioned in the post-mortem examination report and the injury report could have been sustained by the deceased and the injured at the hands of the accused. Moreover, neither in the site plan nor in the inspection note of I.O the exact place of the deceased and the injured has been depicted when the actual shooting started. When both parties were face to face and had indulged in hot exchanges, the natural inference is that both sides must have come in close proximity and were not expected to have remained static during their hot altercations. The seat of injuries on the bodies of the deceased and the injured person speak for themselves that each party had advanced towards another and it seems that when they were face to face the firing was started from the side of the accused and that appears to be the reason that most of the injuries were on the front of the bodies. Moreover, the prosecution case cannot be discarded as a whole at this stage merely on the ground that the inspection note, which is not a substantial piece of evidence, indicates that the firing was resorted to by the accused persons from a distance of 13 steps where they were standing.

11. Now turning to the second submission of the learned counsel noticed above, it may be mentioned that the FIR discloses that two of the accused, who were armed with a lathi and spade, had also assaulted the deceased and the injured. That may be so but it is not certain that their blows had struck the deceased and injured. May be they might have also wielded their weapons but would have missed the target or would not have dared to come in close contact of the deceased and the injured because of indiscriminate firing by four persons. At the most, the benefit of absence of lathi and spade injuries could go to those persons only who were armed with those weapons and not to those who were armed with fire arms and had caused injuries to the deceased and the injured person.

12. Adverting to the third and last of the grounds canvassed before Hon'ble Tripathi, J. Dr. Jhala in his jurisprudence quoted in Chapter XXX a table prepared by Dr. Beaumont prescribing the time required for complete digestion of food articles. According to that Jurisprudence, time of digestion of rice is one hour, Bajri and Juari is two hours while that of wheat bread is 3-½ hours. If after getting up the deceased persons took rice in the breakfast at about 6.00 A.M, the presence of semi digested food in the stomach of the deceased persons could be ensured. Modi in his Medical Jurisprudence says that the process of digestion in normal healthy persons may continue for a time after the death also. In Eastern Uttar Pradesh such breakfast is generally taken. The date of incident is only 4th October when weather is humid and winter is far away. Moreover, there is no evidence on record to fix the time when the deceased took their meals or breakfast in the morning.

13. In view of the aforesaid discussion it is apparent that prima facie there is no force in the arguments of the learned Counsel for the applicant. The incident has been witnesses by an injured witness also whose presence at the, spot cannot be doubted prima facie.

14. The learned counsel for the applicant nest contended that the applicant is entitled to bail on the settled rule of parity as two other co-accused similarly placed have already been granted bail and the role of the applicant being similar and identical equal treatment may be given to him also by extending the facility of bail. In that connection he was also very much emphatic in his submission that if one accused has been granted bail by one Hon'ble Judge, then the other Judge should not differ with him on the basis of his reasoning otherwise the public faith in the Judiciary will be shaken as public at targe only knows that it is an order of the High Court and not that of a particular Judge. In support of his contention he relied upon certain decisions of this Court as well as the Apex Court and also read out Articles 14 and 21 of the Constitution.

15. The concept of the word parity came up for discussion before a Division Bench of this Court in the case of Nanhe v. State of U.P . 1993 30 ACC 281., in which the Hon'ble Judge seized with the case concluded that the rule of parity connotes a state when a person is placed on the same footing as the other persons. We are not unaware of the various circumstances where complete material of the case is not placed before the Court or the State Counsel is handicapped to argue the case for want of proper instructions in time or due to insufficient or incomplete instructions and the Judge passes suitable orders. In case any order of bail is passed in a heinous crime by any Hon'ble Judge when the State Counsel is not properly instructed or he has only incomplete material to assist the Court such rule may be erroneous and other Judge is not bound to follow that order blindly on the plea of parity and grant bail to the accused before him on the ground that other co-accused similarly placed has already been enlarged on bail by another Judge. There may be cases where one Judge may be impressed by a particular point, which is not considered to be sufficient ground in law for granting bail to the accused. In that situation another Hon'ble Judge is free to take a different view and refuse bail by giving his own reasons.

16. The Supreme Court decision in the case State v. Captain Jagdish Singh . AIR 1962 SC 253. is a direct authority on the point in issue. In that case the bail was claimed on the ground of parity as other accused to whom similar role was allotted had been granted bail. That claim was turned down by the Supreme Court with the following observations:—

“It is true that two of the persons who were prosecuted alongwith the respondent were released on bail prior to commitment order but the case of the respondent is obviously distinguishable from their case inasmuch as the prosecution case is that it is the respondent who is in touch with the foreign agency and not other two persons prosecuted alongwith him. The fact that the respondent may not abscond is not by itself sufficient to induce the Court to grant him bail in a case of this nature.”

17. The orders granting, refusing or cancelling bail are orders of interlocutory nature. It is true that discretion in passing interim orders should be exercised judiciously but rule of parity is not applicable in all the cases where one or more accused have been granted bail or similar role has been assigned inasmuch as bail is granted on the totality of facts and circumstances of a case. Parity cannot be a sole ground and is one of the grounds for consideration of the question of bail. Some of the circumstances have been enumerated in the Supreme Court decision in Gur Charan Singh v. State (Delhi Administration . 1978 15 ACC 86 SC.. I have had the opportunity of reading the view of Hon'ble Virendra Saran, J., in the case of Nanhe (supra) and I squarely subscribe to the view of my esteemed brother. The relevant portion of the report is extracted below:—

“26. Nonetheless the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a Judge in tight and strait-jacket to grant bail automatically. There may be cases which may require an exception; where a Judge may not simply take a different view from the Judge who granted bail earlier to a co-accused but where the conscience of the Judge revolts in granting bail. In such a situation the Judge may choose to depart from the rule of recording his reasons. However, such cases would be very few.”

18. In the present case two accused namely Kamla Singh and Ram Asrey Singh have been granted bail by brother Tripathi, J. by two different orders which do not disclose any ground for extending that facility to them. Even no facts and circumstances have been given in those orders, while in the case of co-accused Bijendra Singh, who had been assigned the role akin to those who have been bailed out by Hon'ble G.S.N Tripathi, J. the facility of bail has been refused by Hon'ble S.K Verma, J.

19. It is broad day incident which took place at 8.00 A.M in front of the house of the informant in the heart of village abadi. Two persons were gunned down on the spot, one lost his life on way to hospital and fourth one sustained injuries but providentially survived. There is eye-witness account of the incident by the witnesses including the complainant whose 3 sons were gunned down within his view and injured person. The FIR is very prompt which was lodged within 1-¼ hours at the concerned police station at a distance of 12 kilometres, excluding the possibility of deliberations. The FIR version is fully supported by the medical evidence on record. Moreover the heinous nature of crime perpetrated on innocent people does not permit the conscience of this Court to grant bail to applicant. Taking stock of the aforesaid circumstances, I feel that the applicant is not entitled to the facility of bail on the ground of parity with other co-accused.

20. Accordingly the prayer for bail is refused and this application is rejected.

Application Rejected.