JUDGMENT Ravindra Singh, J.
1. Heard Sri K.K. Dwivedi and M.K. Shukla, learned Counsel for the applicant and learned A.G.A.
2. This application is filed by the applicant Dambar Singh with a prayer that he may be released on bail in Case Crime No. 443 of 2005, under Sections 364, 302 and 201 I.P.C., Police Station Achhnera, District Agra.
3. The prosecution story, in brief, is that the First Information Report of this -case has been lodged by one Naresh Chandra at Police Station Achhnera on 20.9.2005 at 8.50 A.M. in respect of the incident which had occurred on 19.9.2005 at about 2.00 P.M. near Tahsil Kirawali, it was lodged against the applicant, co-accused Dharam Singh, Bhudev, Parshurm and Ors. The distance of the Police Station was about 6 kl.mts.from the alleged place of the occurrence. It is alleged that the deceased Satish Chandra, the cousin of the first informant along with the witnesses Rakesh and Nawali had gone to village Tazpur Nagaria on 19.9.2005 to see a boy for the purposes of marriage of deceased's sister and they were returning by boarding on a truck, the truck stopped at a turning near Tahsil Kirawali where the applicant and other co-accused persons were sitting and waiting the arrival of the deceased. The deceased was abducted by the applicant and other co-accused persons. The occurrence was witnessed by Rakesh, Nawali and some other persons who were present there. The deceased was searched by the first informant but his where about could not be known, the life of the deceased was in danger, therefore the First Information Report was lodged by the first informant Naresh Chandra at the Police Station Achhnera. During investigation, the statement of the first informant Naresh Chandra was recorded and he supported the First Information Report's version but it was alleged that the deceased was taken out from the truck by the applicant and other co-accused persons, he was beaten and taken away by the accused persons, at that time one Rajan, the maternal uncle of the deceased also reached there, the witnesses Rakesh , Nawali and Raj an requested the applicant and other co-accused persons to release the deceased but he was not released by them and he was taken away. Thereafter Rajan, Rakesh and Nawali came to the village of the first informant and disclosed this fact to the first informant and others, then a search was made by the first informant and others but the deceased could not be traced out thereafter the First Information Report was lodged. The statement of witness Rakesh was recorded under Section 161 Cr.PC. he supported the statement of the first informant recorded and the same statement was given by witness Nawali under Section 161 Cr.PC. The applicant was arrested by the Police on 22.9.2005. He confessed before the Police that he has committed the alleged offence and the motive was also disclosed by him. He stated that the deceased was taken to field for the purpose of knowing the where about of one Pushpendra but the deceased did not give proper reply, thereafter he was murdered and his dead body was thrown into Gopau Nahar(Canal) and on his pointing out the dead body of the deceased was recovered on 23.9.2005 from that canal, after completing the investigation the charge-sheet under Sections 364, 302 and 201 I.P.C. has been submitted on 30.11.2005 by the Investigating Officer.
4. The applicant applied for bail before the learned Sessions Judge, Agra vide Crl. Misc. Bail Application No. 2287 of 2005, the same was rejected by Sri Ajay Kumar Singh, learned Sessions Judge, Agra on 16.12.2005.
5. From the perusal of the record, it appears that in the instant case, the applicant and co-accused Parshuram, Bhupendra and Dharm Singh are named in the First Information Report, the allegations against him and other co-accused are the same but the additional evidence against the applicant is that he-was arrested by the police and he confessed before the police about his participation in commission of the alleged offence and at his pointing out the dead body of the deceased was recovered from a canal on 23.9.2005. In the prsent case other co-accused have been released on bail by this court, as Crl. Misc. Bail Application No. 809 of 2006 moved on behalf of co-accused Parshuram and Bhupendra has been allowed by this Court on 16.1.2006 and Crl. Misc. Bail Application No. 175 of 2006 moved on behalf of co-accused Dharmendra Singh has also been allowed by this Court on 9.1.2006. In the present bail application, the applicant claimed for a benefit of parity with above mentioned co-accused by suppressing the material fact that at the pointing out of the applicant, dead body of the deceased was recovered from a canal on 23.9.2005, which is distinguishing the case of the applicant with other co-accused. It appears that this fact has been suppressed in the instant bail application because the learned Sessions Judge, Agra has also suppressed this fact in the order dated 16.12.2005 by which the bail application of the applicant was rejected, whereas the bail application was disposed of by the learned Sessions Judge after submission of the charge-sheet, at that time this material fact was available, it is shocking that a material fact which is distinguishing the case of the applicant from the case of the other co-accused has been suppressed in the order dated 16.12.2005 as well as in the present bail application. It is often seen that during investigation some material facts came forward, which are not mentioned in F.I.R. and the same are not disclosed in bail applications because in a large number of cases, either instructions are not received by the public prosecutor or if received are limited up to reply of the contents of bail application only and exhaustive instructions showing all type of the evidence collected by the I.O. are not sent, in such circumstances, the order refusing the bail passed by the Sessions Court, provides a proper assistance to this Court by showing the entire evidence including the material facts, therefore learned Sessions Courts are under obligation to discuss all type of evidence collected by the I. O. up to that date but in the present case a material fact, as discussed above, has been suppressed by the learned Sessions Judge in order dated 16.12.2005, it is compelling me to seek the explanation from Sri Ajay Kumar Singh, then learned Sessions Judge, Agra, who is now posted as District & Sessions Judge, Ghaziabad.
6. Considering the facts and circumstances of the case, I am of the view that the case of the applicant is distinguishable with the case of the co-accused persons who have been released on bail and the applicant has not come with clean hands because a material fact which is distinguishing the case of the applicant from the case of other co-accused persons, has been deliberately concealed in the bail application and claimed the parity with other co-accused is a sufficient ground to reject this bail application, therefore the prayer for bail is refused.
7. Issue notice forthwith to Sri Ajay Kumar Singh, learned Sessions Judge, Ghaziabad to explain as to why the material fact as mentioned above has been suppressed in the order dated 16.12.2005, who shall submit his explanation to this Court within a period of three weeks.
8. List this case for orders on 23.5.2006.