IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.24766 of 2011 ====================================================== Pankaj Mandal .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 09-11-2011 Heard learned counsel for the petitioner and the State. Renewing the prayer for bail in a police case under Sections- 364, 363 and 365/34 of Indian Penal Code, the period of custody since 16.1.2009 is emphasized along with grant of bail to co-accused Uday Kumar in Cr. Misc. No.24707/09. It is submitted that both in the case diary and in the statement under Section-164 Cr.P.C. the victim has specifically named the co-accused Uday Kumar as having a primal role in the abduction. Learned Counsel submits that on principles of consistency if co-accused has been granted bail, the petitioner is entitled to be enlarged on bail on principles of parity. If the boy has been recovered from the custody of the petitioner, it was co-accused Uday Kumar who brought the boy to the petitioner. Patna High Court Cr.Misc. No.24766 of 2011 (3) dt.09-11-2011 2 The prayer for bail was rejected earlier on 5.3.2010 noticing that the victim was recovered from the custody of the petitioner. The victim is stated to be a minor boy aged 10 years. The allegation is serious enough in the opinion of the Court to make the period of custody irrelevant at this stage. A large amount of discretion is inherent in consideration of bail applications. But the discretion has to be tempered with law. It is not absolute. If co-accused with common allegations has been enlarged on bail, a claim by another can certainly be pressed on that ground. But if there are differences in the two claims or if the bail came to be granted to a co-accused from the recitals contained in the order-sheet as may have been placed before the Court concerned, at variance with the materials during investigation, this Court shall retain the discretionary jurisdiction to deny bail on such grounds of distinction. Co- accused Uday Kumar is stated to have been granted bail on the submission that no specific allegation had been made against him. It has been pointed out that he was not only named in the case diary as having a primal role which was not placed before the Court, but today learned counsel for the petitioner has furnished a typed copy of the 164 Cr.P.C. statement of the victim where he names Uday Kumar clearly. Quite obviously correct and relevant materials were not placed before the Court when bail came to be granted to Patna High Court Cr.Misc. No.24766 of 2011 (3) dt.09-11-2011 3 Uday Kumar. The Court finds it difficult to grant bail to the petitioner on principles of consistency alone. The report called for from the Court indicates that out of 15 charge-sheet witnesses 7 had already been examined before 20.8.2011. Of the remaining 8, 1 was the Investigating Officer. Let the prosecution ensure the appearance of the remaining charge-sheet witnesses. The responsibility also now lies with the petitioner to ensure that trial is expedited. The application is dismissed. Krishna Chandra Jha/- (Navin Sinha, J)