Judicial discretion in bail matters requires equitable treatment; the custody of an accused may not be justified when co-accused facing similar charges are granted bail.

JUDGMENT :

1.The instant appeal has been filed under Section 21 of the National Investigation Agency Act, 2008 against the order dated 04.10.2024 passed by learned Additional Sessions Judge-II, Lohardaga in Misc. Criminal Application No.436 of 2024 whereby and whereunder the prayer for regular bail of the appellant in connection with Serengdag P.S. Case No.07 of 2023 (corresponding to G.R. Case No.610 of 2023), registered for the offences under Sections 35 3 /414/120(B) of the INDIAN PENAL CODE , Sections 25(1AA), 25(1-B)a/26(11)/27/35 of the ARMS ACT and Section 17 of the C.L.A. Act, has been rejected.

2.It has been contended on behalf of the appellant that recovery of four cartridges alleged to have been made from the possession of the present appellant.

3.It has been further contended that the identically placed co-accused persons have been directed to be released on bail, which would be evident from the orders as appended as Annex.3 series available in the memo of appeal.

4.It has been contended that the appellant is languishing in judicial custody since 07.07.2023. The charge has already been framed on 23.01.2024, but out of nine charge-sheeted witnesses only two witnesses have been examined till date, which would be evident from the impugned order and status report.

5.Learned counsel has, therefore, submitted that it is a fit case to interfere with the impugned order.

6.While on the other hand, Mr. Shailesh Kumar Sinha, learned Additional Public Prosecutor, appearing for the State, has vehemently opposed the prayer to interfere with the impugned order. The ground has been taken against the appellant that altogether three criminal antecedents are there, hence, it is not the case where the impugned order needs to be interfered.

7.In response thereto, learned counsel appearing for the appellant has submitted that against the co-accused namely Samad Nagesiya @ Smar Nagesiya, four criminal antecedents have been shown to be there as it would be evident from paragraph-10 of the order dated 26.02.2024 passed by this Court in Criminal Appeal (DB) No. 1755 of2023.

8. We have heard learned counsel for the parties and gone through the finding recorded by the learned Court below in the impugned order as also the case diary.

9. This Court on taking into consideration the fact that two accused persons namely Jiwan Lohra and Samad Nagesiya @ Smar Nagesiya have been directed to be released on bail vide orders dated 11.06.2024 and 26.02.2024 passed in Cr. Appeal (D.B.) Nos.90 of 2024 and 1755 of 2023 respectively by this Court. The appellant is in custody since07.07.2023.

10. So far as the instance of the three criminal antecedents are there, the co-accused namely Samad Nagesiya @ Smar Nagesiya has been directed to be released on bail even on consideration of the four criminal cases said to be pending against him as it would be evident from paragraph 10 of the order dated 26.02.2024 passed in Cr. Appeal (D.B.) No.1755 of 2023. The charge has been framed on 23.01.2024 but still two witnesses have been examined out of nine charge-sheeted witnesses.

8. This Court, therefore, is of the view that it is a case where the impugned order needs interference.

9. Accordingly, the order dated 04.10.2024 passed by learned Additional Sessions Judge-II, Lohardaga in Misc. Criminal Application No.436 of 2024, is hereby quashed and set aside.

10. In consequence thereof, the instant appeal stands allowed.

11. Accordingly, the appellant, above named, is directed to be released on bail on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-II, Lohardaga in connection with Serengdag P.S. Case No.07 of 2023 (corres