- (1.) K. K. Chaubey, J. Applicants Said Khan, Malik Khan, and sabboot as first tet and applicants Hashim Khan, Sabbir Khan and Babu Khan separately three different sets have filed these four second bail applications in case crime No. 283 of 1988, under Sections 147, 148, 149, 302 and 307, I. P. C. , Police Station Kotwali Dehat, district Mirzapur.
(2.) ALL these applicants of four bail applications had earlier filed criminal Misc. Bail Application No. 2727 of 1989 which came up for decision before me on 3-4-1989. After hearing the arguments of the learned counsel for the appli cants, the learned counsel for the complainant and the learned A. G. A. , the bail application was rejected on merit. Co-accused Jafru, thereafter filed bail application No. 4505 of 1989 which came up for decision before Hon'ble Mr. Justice B. L. Loomba. He allowed this application on 11-5-1989. Co-accused Irshad Khan, Rustam Khan, Kallu alias Ayub, Badru alias Josaf, Mitthu, Tstakhar and Najru Khan had filed another bail applica tion No. 4570 of 1989 which came up for decision before me. The order dated 12-5-1989 passed on this bail application goes to show that it was allowed only on the ground of parity because co-accused Jafru had been admitted to bail vide order dated 11-5-1989 of Hon'ble Mr. Justice B. L. Loomba. It does not appear that any other consideration was made. Besides that it also does not appear that this fact, that earlier bail application had been rejected by me on 3-4- 1989, was brought to my notice.
(3.) NOW the four second bail applications have been moved on the ground of parity. It was argued by the learned counsel for the applicants that as the bail applications of the co-accused were allowed on 11-5- 1989 and 1-5-1989 (referred earlier), the applicants having similar case should be admitted to bail in these second bail applications although their first bail application had been rejected on merits. In support of this contention he has cited some rulings ; (1) Ashok Kumar v. State of Punjab, AIR 1977 Supreme Court 109. In this case Supreme Court convicted the appellant under Section 326/34, I. P. C. instead of Section 302/34, I. P. C. on the ground of consistency as one of the accused persons had been convicted and sentenced under Section 323/34, I. P. C. although the Supreme Court was of the opinion that it was a clear case of inflicting knife injuries with common intention of the assailants to cause the death. (2) Babu Singh and others v. State of U. P. , AIR 1987 Supreme Court 527. In this case the bail application of the petitioner had been rejected by the Supreme Court and when second bail application was moved in the court, it was observed "an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. " (3) Gama and another v. State of V. P. , 1987 Cr. LJ 242. In this case it was held by this court that successive bail applications are maintainable if matter has not already been considered in earlier bail application. (4) Rajendra Singn Sethia v. State, 1988 Cr. LJ 749. Relying on the aforesaid judgment of Babu Singh v. State of U. P. , the Delhi High Court held in this case that successive bail applications are main tainable on fresh materials and different considerations. (5) Surath Behera v. State of Orisanda, 1988 Cr LJ 1508. In this case also refence was made of the aforesaid Babu Singh's case by the Orissa High Court and it was held that the successive bail applica tions are not barred. Against the above rulings the learned A. G. A. has placed reliance in Sita Ram and another v. State, 1982 (18) ACC at page 182, in which the principle of consistency and parity has been discussed. I shall come to this ruling lateron.;