The main legal point established in the judgment is the requirement of a reasoned order and the consideration of the specific role of the accused in the offense while deciding on a bail application.

JUDGMENT :

1. Heard Shri P.K. Singh, learned counsel for applicant and Shri Om Prakash, learned Additional Government Advocate for State.

2. Applicant – Hargovind has preferred second bail application, who is facing trial in connection with Case Crime No.07 of 2019, under Section 376D, 342, 323, 120B of Indian Penal Code and Section 3/4 of POCSO Act, Police Station – Nibohara, District Agra.

3. The first bail application was rejected by a reasoned order on facts as well as on Law. The operative portion of order dated 13.7.2021 is reproduced hereinafter :

“8. The allegations against the applicant are consistent in FIR, statement of victim recorded u/s 161 Cr.P.C. and 164 Cr.P.C. that during entire occurrence of rape he remained at the place of occurrence. He not only locked the room from outside but repeatedly told co-accused to do it fast. Co-accused Veeru also joined him. Section 376 (D) IPC states that "Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape".

9. Considering the gravity of offence, no case of bail is made out. Accordingly, the bail application is rejected.”

4. Shri P.K. Singh, learned counsel for applicant has vehemently argued that while considering first bail application, certain material aspects of the case were not considered such as similarly situated co-accused Veeru @ Virendra was granted bail by a coordinate Bench of this Court in Criminal Misc. Bail Application No.30684 of 2019, vide order dated 7.8.2019, prior to the order passed in first bail application of applicant.

5. Learned counsel further submits that applicant is a student and presently, he is pursing M.Phil. The allegation that he has closed the door from outside and remained there, is not only improbable as victim has no opportunity to identify from inside the room. Therefore, applicant is also entitled for bail on the ground of parity.

6. Learned counsel for applicant also relied upon a judgment passed by the Division Bench of this Court in the case of Nanha s/o Nabhan Khan vs. State of U.P; 1992 LawSuit (All) 219 wherein, the Division Bench has decided two questions referred to the Bench and in support of his submission, he read out paragraph Nos. 58, 59 and 61, which are mentioned hereinafter :

“58. The word 'parity' means the state or condition being equal or on a level; equality; equality of rank or status (See Shorter Oxford English Dictionary 1936 Ed.). In other words it means being placed at the same footing. All the accused of a case always do not stand on the same footing. While considering bail of different accused the court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. The case of Cap. Jagjeet Singh (supra) is an illustration wherein the Supreme Court distinguished the case of Capt. Jagjeet Singh on the ground that he was in touch with foreign agency and leaking out secrets. The Supreme Court in the case of Gur Charan Singh vs. Delhi Administration, AIR 1978 SC 179 : (1978 Cri LJ 129) laid down that the considerations for grant of bail are inter alia the position and status of the accused with reference to the victim and the witnesses; likelihood of the accused; fleeing from justice; of repeating offence; of jeopardising his own life, being faced with grim prospect of possible conviction in the case; of tampering with witnesses; and the like. These are additional factors which are to be judged in the case of individual accused and it may make the cases of different accused distinguishable from each accused. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands on identical footing.

59. None the less the principle of grant of