Supreme Court: The Division Bench of Dr. Dhananjaya Y. Chandrachud* and M. R. Shah, JJ., pronounced an important judgment which came out to be a significant development regarding law relating to bail. The Bench not only criticized the practice of lower Courts of attaching caveat for not treating the decision as precedent, but also emphasized on need for reasoned disposal of bail matters. The Bench expressed,
“Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused…it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”
Factual Matrix of the Case
The High Court of Gujarat had granted bail to six persons who had been implicated in five homicidal deaths. The genesis of the incident was that the accused had all come to the scene of offence with pistols, dhariyas and knives and that initially Vishan (A-6) and two others had fired from their rifles as a result of which five persons fell to the ground. Some of these accused were alleged to have assaulted with dhariyas and lathis over the head and body of deceased. The incident resulted in the death of five persons. Among the twenty-two accused were Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).
On 22-10-2020, the High Court had granted bail to A-13 on the primary basis that he was armed with wooden stick and no substantial role was assigned to him. Also, there had been substantial changes in the genesis of the incident including the nature of the weapons in statement of the informant. And the allegation in the FIR was that A-6 had fired several rounds from a rifle together with other persons, the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The reliance was placed by the Court on Sanjay Chandra v. CBI, 2012 (1) SCC 40, for granting bail. Later on, other accused were granted bail based on parity.
Observation and Analysis by the Court
The singular absence in the judgment of the High Court was consideration regarding nature and gravity of the crime. The incident which took place on 09-05-2020 resulted in five homicidal deaths. The orders of the High Court were conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The Bench stated, “The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted.”
In Ram Govind Upadhyay v. Sudharshan Singh, the nature of the crime was recorded as “one of the basic considerations” which has a bearing on the grant or denial of bail. The Court, in that case had held that, “grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”
We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction.
“The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.”
In granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. The first circumstance which should have weighed with the High Court but which has been glossed over is the seriousness and gravity of the offences. Post Mortem reports had indicated extensive nature of the bodily injuries. The Bench expressed, “whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross FIR indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused.”
On Caveat regarding not to the Order as Precedent
The Bench disapproved the practice of attaching caveat not be treat the order as a precedent to claim bail on the basis of parity. It stated that whether parity could be claimed by on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent did not constitute judicially appropriate reasoning. The Bench opined, “Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out.”
Does consent of parties obviate the duty of Courts to Give Reasoned Orders?
The High Court, while granting bail to Vishan (A-6) added that that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other.
Lastly, the Bench added that the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. The impugned orders were held to be tainted with perversity and hence, were set aside. The appeal was allowed and the all the accused were to surrender forthwith.
[Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana, 2021 SCC OnLine SC 335, decided on 20-04-2021]
Kamini Sharma, Editorial Assistant has put this report together
*Judgment by: Justice Dr Dhananjaya Y. Chandrachud
Appearance before the Court by:
For the Appellant: Sr. Adv. Vinay Navare, Adv. Jaikriti S Jadeja,
For the Accused: Adv. Purvish Malkan, Adv. Nikhil Goel, Adv. J S Atri and Adv. Haresh Raichura
For the State: Adv. Aniruddha P Mayee