(Prayer: This Crl.P is filed u/S 439 Cr.PC (filed u/S 483 BNSS) by the advocate for the petitioner praying that this Honourable Court may be pleased to enlarge the petitioner on regular bail under Sec.439 of the Code of Criminal Procedure Code in (Cr.No.16/2023) Spl.C.No.35/2023 of Batlahalli P.S. for the offence p/u/S 20(B) of NDPS Act 1985 pending on the file of Prl.District and Sessions Judge, Chikkaballapura.)

Oral Order

1. The petitioner is before this Court seeking his enlargement on regular bail under Section 439 of the Cr.P.C. for an offence punishable under Section 20(b) of the Narcotic Drugs And Psychotropic Substances, Act, 1985.

2. Heard Sri. Narayanaswamy K.N., learned counsel appearing for the petitioner, Sri. B.N. Jagadeesha, learned Addl. SPP appearing for the respondent and have perused the material on record.

3. Facts in brief, germane, are as follows:

          The petitioner is accused No.2. The petitioner along with the other accused gets embroiled in a crime in Crime No.16/2023 for the aforesaid offence. The police conduct investigation and file a charge sheet against the accused, which was pending before the concerned Court as Spl.C.No.35/2023. Since the petitioner was not available for trial at the relevant point in time, the case was split as Spl.C.No.79/2023. Accused No.1 applies for a regular bail and Court of Session in terms of its order dated 05.06.2023 enlarges accused No.1 on bail. The sole reason that the bail was not granted to this petitioner was that a sword of non-bailable warrant was hanging on his head, as he was not available before the concerned Court at the relevant point in time. With that being the only reason for not granting bail, the petitioner is entitled to be enlarged on bail on the ground of parity of accused No.1 being enlarged on bail. The Apex Court while discussing the law of grant of bail on parity in the case of SAGAR v. STATE OF UTTAR PRADESH1, has held as follows:

          ".... .... ....

          11. It is clear from the perusal of the above factors that the High Court failed to consider all that was relevant. On parity, it is necessary to refer to Ramesh Bhavan Rathod v. VishanbhaiHirabhai Makwana(Koli) [(2021) 6 SCC 230]. This Court observed that while utilizing parity as a ground for bail, the same must focus on the role of the accused and cannot be utilized solely because another accused person was granted bail in connection with the same offence, and neither can this ground be claimed as a matter of right. [See also: Tarun Kumar v. Assistant Director Directorate of Enforcement [2023 SCC OnLine SC 1486]; Sabita Paul v. State of West Bengal [2024 SCC OnLine SC 374].

          .... .... ....

          13. In an attempt to clarify the position of law qua parity as a ground, we may refer to certain judgments of the High Court to appreciate whether there is convergence or divergence of opinion/understanding.

          13.1. The Allahabad High Court in Nanha v. State of U.P.[1992 SCC OnLine All 871], observed as under:--

          24. My answer to the points referred to us is that parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail applications of the co-accused whose bail application had been earlier rejected are allowed and co-accused is released on bail. Even then the court has to satisfy itself that, on consideration of more materials placed, 2025 SCC OnLine SC 2584 further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If an examination of a given case, it transpires that the case of the applicant before the court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail. As regards the second part of the referred question my answer is that it is not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously.

          (emphasis supplied)

          13.2. The Delhi High Court in Harbhajan Singh v. State[2016 SCC OnLine Del 4920], while holding that parity cannot be the sole ground for the grant of bail, observed:

          "15. ... In this regard, this Court thinks fit to reiterate the settled principle that in a criminal jurisprudence, every case stands on different footings and no straightjacket formula can be adopted in the facts of each case. No doubt, the weight of judicial parity should be followed, but on the other hand, this Court is of the conscious opinion that the word 'parity' connotes a state when a person is placed on the same footing as of the other person. This court is also of the opinion that that parity cannot be the sole ground for granting bail in a case where the bail applications of other co-accused whose bail applications had been allowed and are released on bail. It is purely a discretion of the court. Before granting or refusing bail, the court must satisfy itself after considering the material placed on record and further developments in the investigations or otherwise and other peculiar circumstances of each case, which show that there are sufficient grounds for releasing the applicant on bail If on examination of any case, it transpires that the case of the applicant before the court is identically similar to the accused on facts and circumstances, who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail.

          (emphasis supplied)

          13.3. The Himachal Pradesh High Court in Abhay Gupta v. State of H.P. [2016 SCC OnLine HP 1758] held that:

          "It is more than settled that parity alone cannot be the sole ground for granting of bail. It is only one of the grounds for consideration of the question of bail. There is no absolute hide bound rule that bail must necessarily be granted to the co-accused when another co-accused has been granted bail. If on careful scrutiny in a given case it transpires that case of the bail petitioner is identically similar to the accused and facts and circumstances of the case who has been bailed out, then desirability of consistency will require that such an accused should also be released on bail."

          13.4. The High Court of Karnataka at Bengaluru in Shri Narayanaswamy v. State of Karnataka[2017 SCC OnLine Kar 1066], speaking through Aravind Kumar J., (as he then was) observed as hereinbelow:

          "24. The law of Parity would be applied in granting bail to an accused, where the co- accused has been granted bail on similar set of circumstances. Law of Parity is a desirable rule where the case of accused/petitioner is identical with the co-accused, who is already enlarged on bail. Simply because the co-accused has been granted bail also cannot be the sole criteria for granting bail to another accused if they are standing on different footings.

          25. Parity cannot be the sole ground for granting bail and if on scrutiny and examination of records in a given case it transpires that the case of the petitioner before the Court is identically similar to the accused, who has already been granted bail, then it would be desirable that petitioner should also be enlarged on bail. However, if material placed by the prosecution and further developments in the investigation unraveling changed circumstances, this aspect also requires to be taken into consideration and in such circumstances the principle of Parity as an universal application or a straight jacket formula cannot be applied.

          (emphasis supplied)

          13.5. The Madhya Pradesh High Court in Neeraj alias Vikkysharma v. State of M.P.[2019 SCC OnLine MP 7023], held that parity cannot be the sole ground for considering the prayer for bail, even at the stage of the second or third application for bail. It was further observed that "Failure of justice may be occasioned if bail is granted to an accused on the basis of parity with another co-accused whose bail order does not contain any reason."

          13.6. Once again, turning to the Delhi High Court- in Pradeep v. State (Govt. NCT of Delhi)[2023 SCC OnLine Del 4307] it was held by a learned Single Judge that the grant of bail to a co-accused in itself does not grant other accused a ground for bail. Even when parity as a ground is urged, the sum total of circumstances is to be considered.

          13.7. Recently, the Calcutta High Court in Subires Bhattacharya v. CBI[2024 SCC OnLine Cal 11889] also took the same view in the following terms:

          "30. Parity cannot be the sole ground for granting bail even at the stage when the bail application of a co-accused is allowed. The Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations and other different considerations, there are sufficient grounds for releasing the applicant on bail. In deciding the aspect of parity, the role attached to the accused persons, their position in relation to the incident and to the victims is of utmost importance. Court cannot proceed on the basis of parity on a simplistic assessment, which again cannot pass muster under the law."

          14. What flows from the above judgments, which have been referred to, only to the limited extent indicated above, is that the High Courts speak in one voice that parity is not the sole ground on which bail can be granted. That, undoubtedly, is the correct position in law.The word 'parity' is defined by the Cambridge Dictionary as "equality, especially of pay or position." When weighing an application on parity, it is 'position' that is the clincher. The requirement of 'position' is not met only by involvement in the same offence. Position means what the person whose application is being weighed, his position in crime, i.e., his role etc. There can be different roles played - someone part of a large group, intending to intimidate; an instigator of violence; someone who throws hands at the other side, instigated by such words spoken by another, someone who fired a weapon or swung a machete - parity of these people will be with those who have performed similar acts, and not with someone who was part of the group to intimidate the other by the sheer size of the gathering, with another who attempted to hack away at the opposer's limbs with a weapon."

          (Emphasis supplied)

          The Apex Court in the judgment quoted supra holds that albeit parity cannot be the sole ground for granting bail to a co-accused, the position or role of the co-accused would be a determining factor for granting bail on the score of parity.

4. In the light of the aforesaid circumstances, in my considered view, the petitioner may be enlarged on bail by imposing stringent conditions.

5. For the aforesaid reasons, the following:

ORDER

          (i) The Criminal Petition is allowed.

          (ii) The petitioner-accused No.2 shall be released on bail in connection with Crime No.16/2023 of Batlahalli Police Station pending on the file of the Principal District and Sessions Judge, Chikkaballapura, for the aforesaid offence, subject to the following conditions:

          a. The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like-sum to the satisfaction of the jurisdictional Court.

          b. The petitioner shall not indulge in tampering the prosecution witnesses or hamper the investigation, either directly or indirectly.

          c. The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the court for any genuine cause. d. The prosecution is at liberty to prefer an application for cancellation of bail, if there is any violation of the aforesaid conditions.