K.K.Chaubey, J. - (1.) The applicants Ram Sakal and Mangal sons of Mahabir residents of Shea Babri P.S. Lalganj district Basti involved in Crime No. 127 of 1989 under Sections 147, 148, 149, 302, 301 and 323, I.P.C. and 120-B, I.P.C. of P.S. Lalganj District Basti have filed this second bail application. The first bail application was rejected on merits, on 11-12-1989 by this Court.
(2.) In this second bail application, the main contention of the learned counsel for the applicants is that two other co-accused were also armed with country made weapons but they have already been released on bail and so on the ground of parity the applicants should a to bail. The copy of the order by which co-accused Babu Ram and Rana Sangram were admitted to bail has not been produced. Therefore, it is not possible to say as to on what ground they have been admitted to bail. Even if assuming that there no special circumstance for admitting Babu Ram and Rana Sangram to bail, it may be seen as to whether the applicants whose bail application has been earlier rejected on merits, are entitled to be released on the ground of parity. In support of this contention learned counsel for the applicants placed reliance on the following rulings : Ashok Kumar v. State of Punjab, AIR 1977 SC 109 . In this case it was held that on the ground of consistency the applicants should also be convicted under Section 326, I.P.C. read with Section 34, I.P.C. instead of Section 302 read with Section 34, I.P.C. as the other accused has been convicted and sentenced. Sanwal Das Gupta v. State of U.P. and another, 1986 (23) ACC 79 . In this case it was held that if the Sessions Court granted bail to some accused on the ground of parity, the Magistrate could grant bail to other accused. Ram Roop @ Bhim Sen v. State of U.P., 1987 UPA Cr. R. 30 . In this case the co-accused had been released on bail and on this ground the second bail application of another accused was allowed.
(3.) Against these, reference may be made to Said Khan and others v. State of U.P., 1990 ACR 54 . In which reliance was placed on a ruling of this Court in Sita Ram v. State, 1981 ACR 113 . In this case it was held : "The claims of the principle of consistency and demand for parity by the accused, however, are not compelling ones and cannot override the judges contrary view in the case before him if even the awareness of the desirability of consistency fails to move him to modify his view. In other words this is only a factor to be considered and not a governing consideration.;