Jharkhand High Court
Salendra Nagesia vs The State Of Jharkhand on 10 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1545 of 2024
Salendra Nagesia, aged about 45 years Son of Raghu Kishan, resident of
Semartoli, Orsa, P.O.+ P.S.- Mahuadanr, Dist- Latehar
--- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
.......
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE NAVNEET KUMAR
For the Appellant : Mr. Chandan Kumar, Advocate
For the Respondent : Mr. Pankaj Kumar, P.P.
Order No.2 / Dated 10th January 2025
I.A. No.8964 of 2024
This interlocutory application has been filed for condoning the delay of
37 days in filing the appeal.
2. Heard learned counsel for the parties.
3. Considering the sufficient cause as has been assigned in the
interlocutory application and having no objection on the part of the
Respondent State, the delay of 37 days in preferring the appeal is hereby
condoned.
4. Accordingly, I.A. No. 8964 of 2024 stands allowed and disposed of.
Cr. Appeal (DB) No.1545 of 2024
5. The instant appeal filed under Section 21(4) of the National
Investigation Agency Act, 2008, is directed against the order dated
28.05.2024 passed in Misc. Cr. Appl. No. 325 of 2024 by the learned
Additional Sessions Judge-II, Latehar, whereby and where under prayer for
regular bail of the appellant has been rejected for the offence registered under
Section under Section 370(4)/34 of the I.P.C in connection with S.T. Case
No. 46 of 2024 arising out of Mahuadanr P.S. Case No. 11 of 2023
corresponding to G.R. Case No. 404 of 2023.
6. It has been contended on behalf of the appellant that appellant is
languishing in judicial custody since 20.05.2023 and still the trial has not
been concluded.
7. It has further been contended on behalf of the appellant that two other
co-accused namely Amit Bansal and Virendra Kumar Gupta have been
directed to be released on bail by the co-ordinate Bench of this Court in
Criminal Appeal (DB) No. 363 of 2024 vide order dated 02.05.2024 and
Criminal Appeal (DB) No. 52 of 2024 vide order dated 18.04.2024
respectively.
8. Learned counsel for the appellant, based upon aforesaid grounds has
submitted that it is a fit case where interference is needed in the impugned
order.
9. On the other hand, learned P.P. appearing for the State has vehemently
opposed the prayer for interfering with the impugned order, reason being that
appellant is making a new case of non-conclusion of trial, which point has
not been raised before the concerned Court.
10. Further, it has been submitted by the learned counsel for the State that
out of 9 charge-sheeted witnesses, 5 witnesses have been examined and the
trial is likely to be concluded in the near future.
11. Learned P.P. has further submitted that the cases of the two co-
accused, who have been directed to be released on bail by the Coordinate
Bench of this Court is different from the case of the appellant, since, against
them the allegation was only that they were taking the services of the victims
while the allegation against the present appellant is that he is the person
instrumental in carrying/ trafficking the two children and as such, Principle of
Parity cannot be said to be applicable herein. Therefore, taking into
consideration the nature of allegation and further considering that one of the
victim has not been traced out, it is not a fit case where interference is needed
with the impugned order.
12. We have heard the learned counsel for the parties, gone across the
findings rendered by the learned Court in the impugned order as also the case
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diary, based upon the materials so collected during course of investigation.
13. The fact about the custody and the Principle of Parity has been taken
as ground for interfering with the impugned order.
14. There is no dispute that the Principle of Parity is made applicable in
the matter of bail also but while applying the Principle of Parity, the factual
aspect and nature of allegation from whom the parity is sought for needs to
be examined.
15. As would appear from the orders of the Court allowing the prayer for
bail of the co-accused by quashing the order of the concerned court that the
co-accused who were directed to be released on bail were not at all involved
in the matter of trafficking attracting the ingredients of the offence under
Section 370 of the IPC while against the appellant there is allegation of direct
overt act being instrumental in trafficking the two minor victims, one of
whom is still traceless.
16. Therefore, the Principle of Parity cannot to be applicable in view of
the judgment rendered by the Hon’ble Apex Court in the case of Tarun
Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC
OnLine SC 1486 wherein it has been held as under:
“18. The submission of learned Counsel Mr. Luthra to grant bail to the
appellant on the ground that the other co-accused who were similarly
situated as the appellant, have been granted bail, also cannot be accepted.
It may be noted that parity is not the law. While applying the principle of
parity, the Court is required to focus upon the role attached to the accused
whose application is under consideration.”
17. It is further settled connotation of law that Court cannot exercise its
powers in a capricious manner and has to consider the totality of
circumstances before granting bail and by only simply saying that another
accused has been granted bail is not sufficient to determine whether a case for
grant of bail on the basis of parity has been established. Reference in this
regard may be made to the judgment rendered by the Hon’ble Apex Court in
Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC
230 wherein it has been held as under:
3 Cr. Appeal (DB) No. 1545 of 2024
“25. We are constrained to observe that the orders passed by the High
Court granting bail fail to pass muster under the law. They are oblivious
to, and innocent of, the nature and gravity of the alleged offences and to
the severity of the punishment in the event of conviction. In Neeru Yadav
v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015)
3 SCC (Cri) 527], this Court has held that while applying the principle
of parity, the High Court cannot exercise its powers in a capricious
manner and has to consider the totality of circumstances before
granting bail. This Court observed : (SCC p. 515, para 17)
“17. Coming to the case at hand, it is found that when a stand was taken
that the second respondent was a history-sheeter, it was imperative on the
part of the High Court to scrutinise every aspect and not capriciously
record that the second respondent is entitled to be admitted to bail on the
ground of parity. It can be stated with absolute certitude that it was not a
case of parity and, therefore, the impugned order [Mitthan Yadav v. State
of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application
of mind. That apart, as a matter of fact it has been brought on record that
the second respondent has been charge-sheeted in respect of number of
other heinous offences. The High Court has failed to take note of the
same. Therefore, the order has to pave the path of extinction, for its
approval by this Court would tantamount to travesty of justice, and
accordingly we set it aside.”
26. Another aspect of the case which needs emphasis is the manner in
which the High Court has applied the principle of parity. By its two
orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of
Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai
Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High
Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15).
Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom
bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State
of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High
Court recorded) that he was “assigned similar role of armed with stick
(sic)”. Again, bail was granted to Vanraj Koli (A16) on the ground that
he was armed with a wooden stick and on the ground that Pravin (A-10),
Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had
been granted bail. The High Court has evidently misunderstood the
central aspect of what is meant by parity. Parity while granting bail
must focus upon the role of the accused. Merely observing that another
accused who was granted bail was armed with a similar weapon is not
sufficient to determine whether a case for the grant of bail on the basis of
parity has been established. In deciding the aspect of parity, the role
attached to the accused, their position in relation to the incident and to
the victims is of utmost importance. The High Court has proceeded on
the basis of parity on a simplistic assessment as noted above, which
again cannot pass muster under the law.”
18. So far as issue of custody is concerned, as would be evident from the
report submitted by the Superintendent of Police, Latehar, that out of 9
charge-sheeted witnesses, 5 witnesses have been examined.
19. Considering the gravity of the nature of allegation and out of two
4 Cr. Appeal (DB) No. 1545 of 2024
victims, one victim is still traceless and one of the trafficked child who has
been recovered has disclosed the name of the present appellant in specific
terms and also the fact that the trial is at the fag end, this Court is of the view
that this is not a fit case for interfering with the impugned order.
20. Accordingly, the prayer for bail is rejected and consequently the
instant criminal appeal is dismissed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
R.Kumar
5 Cr. Appeal (DB) No. 1545 of 2024