ORDER :

1. Leave granted.

2. The appeal arises from an order dated 22 August 2022 of a Single Judge of the High Court of Judicature at Allahabad in Criminal Miscellaneous Bail Application No 26740 of 2022 admitting the first respondent, Waseem, to bail under Section 439 of the Code of Criminal Procedure 1973¹[“CrPC”]. The application for bail was filed in connection with Case Crime No 126 of 2020 registered at PS Mundali, Meerut for offences punishable under Sections 147 , 148, 149, 352, 307, 302 and 504 read with Section 34 of the INDIAN PENAL CODE 1860²[“IPC”].

3. Before the High Court, bail was sought on the ground that :

(i) The first respondent has been “falsely implicated in the present case with ulterior motive”;

(ii) Co-accused, Niyaj Ahmad, was admitted to bail on 4 August 2022 in Criminal Miscellaneous Bail Application No 4555 of 2022; and

(iii) The role assigned to the first respondent was similar to that of the coaccused who has been enlarged on bail.

4. The High Court noted that bail was claimed on the basis of parity. While granting bail, the High Court has specifically noted that the co-accused was admitted to bail.

5. By a judgment dated 30 September 2022 in Criminal Appeal No. 1722 of 2022 Ajwar vs Niyaj Ahmad & Anr, Criminal Appeal No.722 of 2022 the order of the Single Judge of the Allahabad High Court dated 4 August 2022, granting bail to co-accused Niyaj Ahmad, has been set aside.

6. Mr Md Anas Chaudhary, counsel appearing on behalf of the appellant submits that :

(i) Bail was specifically sought by the first respondent on the ground of parity and since this Court has cancelled the bail which was granted to the coaccused, the impugned order would have to be set aside;

(ii) A specific role in the incident, which led to the death of two sons of the informant-appellant, has been attributed to the first respondent and he has been named in the FIR;

(iii) After investigation, the charge sheet was submitted under Section 173 CrPC adverting to the role of the first respondent;

(iv) The statements recorded under Section 161 CrPC during the course of the investigation advert to the role of the first respondent; and

(v) During the course of his deposition at the trial, PW 1 has adverted to the role of the first respondent.

7. The submissions which have been urged on behalf of the appellant by Mr Md Anas Chaudhary, counsel, have also been supported by Mr Sharan Thakur, counsel appearing for the State of Uttar Pradesh. Counsel appearing on behalf of the State has, in addition, submitted that the statements which have been relied upon by the first respondent are actually those statements which have been recorded during the course of investigation of the cross FIR.

8. Mr. Sidharth Luthra, senior counsel appearing on behalf of the first respondent, submitted that :

(i) Though the first respondent has been named in the FIR, his role has not specifically been adverted to in any statement under Section 161 CrPC.

(ii) In the order of this Court dated 30 September 2022, reliance was placed on the order of the trial court dated 23 August 2022;

(iii) Apart from the order referred to in (ii) above, an additional fact which ought to have been brought to the notice of the Court was that on the previous dates the trial could not proceed for want of production of the accused;

(iv) In a situation where there are two bullet injuries (one each to the two deceased) by three assailants, there is a possibility of over implication.

9. From the order of the High Court which is impugned in the appeal, it is evident that the primary consideration which has weighed with the High Court is that bail had been granted by a coo