Full Judgment
R.S. Garg, J.
1. Heard.
2. Diary of Crime No. 8/2001 of P.S. Somani (Rajnandgaon) registered for the offences punishable under Sections 147, 148, 149 and 307 of the IPC perused.
3. Learned counsel for the applicant submits that the three persons were named in the first information report and in the alleged dying declaration of the complainant Manoj. The said three persons were directed to be released on bail by the learned Additional Sessions Judge, Rajnandgaon on 30th January, 2001.
4. The applicant who was not named in the first information report was subsequently arrested and made an application for his release on bail but the said application was rejected on 15-2-2001. Learned Court-below rejected the application mainly on the ground that the allegations against the present applicant that he had caused injuries to the victim in association with others.
5. From the records it appears that the present applicant repeated his application which was registered as bail case No. 78/2001. Learned Court-below (Smt. Maitrayee Mathur) rejected the application mainly on the ground that the order in favour of the other four was passed by the different Presiding Officer (Shri H.R. Agwan) and as the earlier application was rejected and there were no changed circumstances the applicant was not entitled to be released on bail.
6. Shri P.K.C. Tiwari, learned counsel for the applicant submits that the persons who were named as assailants and were identified on the spot have been released on bail on 30th January, 2001 but the applicant who was neither named in the FIR nor in the dying declaration nor by any witness is languishing in jail, just for nothing. He submits that the approach of the Court-below is not only contrary to the law but is arbitrary, whimsical and capricious.
7. On the other hand learned counsel for the State opposses the application.
8. I have gone through the entire case diary. The first information report which was lodged by the complainant slates that Dinesh, Umesh and Uttam with some of their associates armed with stick, rod and sword made an attempt on him; he also referred to names of certain eye-witnesses who had witnessed the incident. Immediately after the report he was shifted to thehospital where his dying declaration was recorded. In the said dying declaration he stated that he could identify Uttam, Dinesh and Umesh. He did not make any allegation against the present applicant. The police during the course of investigation recorded statements of some eye-witnesses. The said eye-witnesses did not make any allegation against the present applicant. It is only in the memorandum of the co-accused that certain allegations have been made against the present applicant. Barring the statements contained in the memorandum of the co-accused, the case diary does not contain any other evidence to connect the applicant with the alleged crime.
9. The grant of application in favour of some of the accused should earnestly persuade a judicial officer to grant bail to the co-accused if the allegations are identical or there are no material differences in the allegations. This Court had been repeatedly saying that if the allegations are identical or almost similar then similars should be treated similarly. I fail to understand as to why a judicial officer should act arbitrarily and in such a whimsical manner in rejecting the application for grant of bail. If the three named persons were granted bail, by any other judicial officer then so long as the said order is existence or is not set-aside by any Revisional Court then such order would provide a foundation in favour of the co-accused for his release. It would be height of the judicial impropriety to say that because some Judge had granted bail to some of the co- accused, the same order would not enure to the benefit of the co-accused before another Judge. An application for grant of bail cannot be rejected cursorily or without going through the facts as contained in the case diary. As already observed the case diary does not contain any substantial allegation against the present applicant but for a statement in the memorandum of the co-accused. It is trite law that the statements contained in the memorandum of one accused are not admissible against another co- accused because his inculpatory statement is not admissible against his own interest. The statements contained in memorandum are admissible only to the extent, that the maker of the statement made certain statements and in furtherance of the said statements certain incriminating articles were discovered. Section 27 even if is stretched to last extreme but within four corners of law, would not make the said statements of the maker admissible against the co-accused. If in a given case barring the statements of some accused that another person was also associated with him at the time of commission of the crime then in such a situation the person who has been made in the memorandum of the co-accused stands guarded with the sheath provided under Section 27 of the Evidence Act.
10. The another Presiding Officer on 30th January, 2001 though recorded that the complainant had suffered fractures in his hand and on the mandible but he found case of the co-accused fit for grant of bail. The applicant who was subsequently arrested on 14-2-2001 made a submission before the present Judge that as application of the other four has already been allowed the present applicant deserves to be released on bail. The learned Judge observed that the case diary contained in the allegations that the presentapplicant with his associates armed with stick, rod and sword caused injuries to the victim. The learned Judge did not care to see the medical report of the complainant. The said report does not show that the complainant had suffered any incised or stab wound or cut injury. The learned Judge simply observed that the present applicant alongwith others caused injuries to the complainant but did not care to see that neither the complainant nor others were saying that the present applicant had caused injuries nor anybody named the applicant as one of the assailants. The rejection of the application on 15-2-2001 whether is justifiable or not is not a question before this Court, but the question is 'Whether the second application could simply be rejected on the ground that the others were directed to be released by another Judge and the application was a repeat prayer' ?
11. This Court had been repeatedly writing and is requesting the 'Hon'ble Learned Judges' of the Lower Courts that 'the change of circumstances is not an extra-ordinary technical term. The change of circumstances are in fact bundle of facts which may time and again persuade a Judge to grant repeat application'. In a case like present where three named persons have already been admitted to bail then rejection of the application of the fourth would not only be bad but illegal and rejection of the repeat application on the ground that the application of the others was granted by another Judge, therefore, the repeat application could not be allowed is a bad order. By making the said observation the present Judge was probably making some insinuation against the first Judge or wanted to convey that the first Judge without application of mind had granted bail.
12. I fail to understand that what could pursuade the learned Judge to reject the application. The Lower Courts are advised to apply their mind to the facts of the case, must go through the case diary and should also take into consideration the law laid down by this Court and the Supreme Court and should not act whimsically in an arbitrary manner. The learned Judge is forewarned that insubordination is a serious lapse and making such loose remarks against a colleague would be unpalatable to this Court.
13. The Registry is directed to send a copy of this order to the concerned Additional Sessions Judge through the District and Sessions Judge.
14. The petition is allowed.
15. The applicant is directed to be released on bail on his furnishing a personal bond in sum of Rs. 7,000/- with one surety in the like amount to the satisfaction of C.J.M., Rajnandgaon, for his appearance before the said Court or as and where so directed.
16. Misc. Criminal Case allowed.