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Judgment
Nisar Ahmad Kakroo, J.—This order will dispose of the bail application filed in a criminal case pending trial in the Court of learned
Additional Sessions Judge, Srinagar. The accused-petitioner stands charged u/s 302 read with Sections 34 and 120-B, R.P.C. He Is not the only
accused in the case but there are two more who stand admitted to bail by the trial Court vide its order dated 31-12-1998. The applicant appears
to have been tempted by such order to claim bail on the ground of parity of charges. The attempt, having proved abortive, jurisdiction of this Court
is invoked u/s 498, Cr.P.C.
It is contended that the evidence produced by the prosecution during the trial is not sufficient to render the accused guilty of the offence,
therefore, bail is claimed on the ground of not being guilty. The endeavor of the LC for the applicant appears to engage the Court in discovering the
innocence of the accused, which is not possible because that is required at a stage when conviction or acquittal is to be recorded, for which, stage
is yet to be set. At this point of time, it is the amount of probabilities, which is to be taken into consideration just to form a prima facie opinion.
Thus, I am loath to sift the evidence.
It is next contended that since the Court has the power to grant bail, therefore power is required to be exercised. In this behalf, it needs to be
observed that the Court has a discretionary power to admit an accused to bail but the availability of power does not mean that its exercise is
permissible on mere asking. If it would be so, it is bound to amount to an arbitrary exercise of power, a situation, this Court cannot conceive of. As
a corollary, availability of such power presupposes judicious exercise, thus various circumstances have to be borne in mind while taking a decision
to admit the accused to bail which, inter alia, are; nature and gravity of offence; degree of punishment prescribed for such offence besides whether
a reasonable ground does or does not exist for believing the guilt.
I have gone through the order of the learned Addl. Sessions Judge, Srinagar, who has dwelt upon the issue in depth and has come to a definite
conclusion that the evidence on record implicates the accused. Lucid judgment of the learned Judge reveals that he is fully alive to the
aforementioned considerations. I have also gone through the record and I am of considered opinion that at this stage there appears absolutely no
possibility of taking any other view contrary to the one taken by the learned Judge.
This brings me to the question of parity of charge. There cannot be two opinions that when two or more accused make a motion for bail who
are similarly circumstanced, there should be uniformity in the orders, thus if one of them is granted bail on the basis of evidence recorded although
he does not fall within an exception others must be treated alike, but it is possible only when they are similarly situated evidence-wise be it direct or
circumstantial, which would mean, that if evidence against one of them is stronger than the one who has been admitted to bail, the position would
be altogether different. This is what has prompted the learned Judge to decline the concession of bail. The view, so taken being both legally and
factually sound,: I, therefore, find myself in agreement with it.
In the result, this application fails.