TMI Blog2021 (4) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged offences and to the severity of the punishment in the event of conviction. In NEERU YADAV VERSUS STATE OF U.P. [ 2014 (12) TMI 1347 - SUPREME COURT] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. Principle of parity - HELD THAT:- 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. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law. There has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 135 of the Gujarat Police Act. The Appellant-Ramesh Bhavan Rathod-is the informant on whose statement, the FIR was registered at 1930 hours in respect of an incident which took place at 1300 hours. The incident took place in village Hamirpur which is at a distance of 20 kms from the police station. The incident which led to the commission of five murders had its genesis in a land dispute. The informant alleged that he and his brother Pethabhai had gone to their farm at 6:00 am. At 1 pm, the informant, Pethabhai and his brother-in-law Akhabhai were returning home in a Scorpio vehicle with five other persons. When the vehicle reached the untarred road passing through the farm of Lakha Hira Koli and Kanji Bijal Koli, these two persons came out along with Lakha Hira Koli. Lakha Koli dashed his tractor on the front portion of the Scorpio vehicle. Kanji Koli parked his tractor on the rear side of the Scorpio, behind which another Sumo vehicle came to be stationed. The Scorpio and its occupants were waylaid. As the informant and others attempted to run away from the scene, he saw the homicidal incident which he describes in the following terms: ..At that time I saw that Dhama Ghela K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade guns, two indigenous counterfeit guns, four dhariyas and one wooden stick. 4. On 13 May 2020, a cross FIR was registered at the behest of Vishan Heera Makwana (Koli) being FIR No. 11993005200315 at Police Station Aadesar. The informant in the cross FIR claims to be an original resident of village Hamirpar and is presently residing at Village Anjar. The FIR states that after the lockdown had been declared on 25 March 2020, the informant had left Anjar to go to village Hamirpar. About fifteen years ago certain agricultural land had been sold to another person, who subsequently gave it for cultivation to Akhabhai. Akhabhai was refusing to give the fields for cultivation to the informant as a result of which a quarrel had taken place on 7 May 2020. The informant's motor cycle had been taken away by the police. The issue had been settled at the intervention of persons belonging to the community and no complaint was filed. According to the cross FIR on 9 May 2020, the informant Vishan sent his nephew to the Police Station together with Akhabhai to retrieve the motor cycle. The cross FIR narrates Vishan's version of the incident which took place on 9 May 2020 in the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractor at that time my another cousin brother Kanji Bijal came with the another tractor and Lakhman Bijal came with the sumo jeep and dashed with the jeep of Akhabhai. At that time our ladies came down during quarrel Ramesh Bhavan Rathod-Papu Gabha Umat-Akhabhai Son Dharmendra ran away at that time the our persons who came there assaulted with the dhariya and lakdi's on Akhabhai-Velabhai-Pethabhai-Amrabhai And Lalji and this quarrel i have been injured... 5. Vishan was arrested on 18 May 2020. A further statement of the informant in the original FIR dated 9 May 2020 was recorded on 3 June 2020. After investigation, the charge-sheet was submitted by the investigating officer against Vishan and twenty-two co-Accused. On 31 August 2020, an application for interim bail moved by Vishan on medical grounds was rejected by the Sessions Judge, Bhachau, Kachchh taking note of the fact that the Accused had produced fake documents for the purpose of obtaining bail. An application seeking regular bail Under Section 439 of the Code of Criminal Procedure was rejected by the Additional Sessions Judge, Bhachau on 4 December 2020. 6. Among the twenty-two Accused, who are named in the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Gujarat Police Act, for the incident which took place on 9th May 2020, on perusal of the charge-sheet papers, it appears that the complainant in the subsequent statement dated 3rd June 2020, which has been recorded after 25 days from the date of incident, the overt tact which was attributed in the FIR, is missing. Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3rd June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details. At this juncture, this Court is not going into the details of the incident as it may affect the trial at the later point of time. Suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side... 9. In addition, the Single Judge observed that: (i) The Accused was in jail since 19 May 2020; (ii) The charge-sheet had been filed after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP (Crl) 1249/2021 - sole accused represented by Mr J S Atri, instructed by Mr Haresh Raichura Since in two of the Special Leave Petitions namely Special Leave Petition (Crl.) Nos. 1245 and 1248 of 2021, no appearance had been entered on behalf of the Accused despite service of notice, this Court by its order dated 5 April 2021 requested Mr. Nikhil Goel to represent them. We appreciate the able assistance which has been rendered by Mr. Nikhil Goel as an officer of the Court who has acted as an amicus curiae for the two unrepresented Accused as well. 13. Mr. Vinay Navare, learned Senior Counsel appearing on behalf of the Appellant-informant submits that the primary basis on which the first order granting bail was passed by the High Court in the case of Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020 is that while the FIR was registered on 9 May 2020, the statement of the informant was recorded on 3 June 2020, in which there have been substantial changes in the genesis of the incident including the nature of the weapons. While the allegation in the FIR is that Vishan (A-6) fired several rounds from a rifle together with other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for the grant of bail. This duty cannot be obviated, it was urged, by recording that the Counsel for the parties did not press for a further reasoned order . 15. The submissions urged by Mr. Vinay Navare, Senior Counsel have been supported during the course of her submissions by Ms. Jaikriti S. Jadeja. Learned Counsel, in addition, adverted to the following circumstances: (i) The registration of three prior FIRs against Sidhdhrajsinh Bhagubha Vaghela (A-13); (ii) The observation of the High Court while granting bail that the order would not be treated as precedent in any other case on grounds of parity; and (iii) The grant of bail on the basis of parity alone to Vanraj Karshan Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli (A-10) and Dinesh Karshan Akhiyani (Koli) (A-17). 16. Mr. Aniruddha P. Mayee, learned Counsel appearing on behalf of the State of Gujarat has supported the submissions of the Appellant in the challenge to the orders granting bail on the following grounds: (i) The grant of bail by the High court to the six Accused persons in this batch is not justified having regard to the following circumstances: a. The main Accused Vishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The post-mortem reports of 10 May 2020 would belie the allegation that the deaths were caused as a result of gunshot injury; (x) An attempt was made to improve upon the allegations in the FIR in a subsequent statement of the informant on 3 June 2020 to ensure that the allegations in regard to the weapons used in causing the injuries are made consistent with the post-mortem reports which indicate the use of sharp-edged weapons; (xi) The allegation in the FIR is that five persons on the side of the informant were hit by bullets and were lying on the land which is belied by the Post Mortem reports not indicating gunshot injuries; and (xii) The nature of the incident is sought to be altered in the statement which was recorded on 3 June 2020. The earlier version which refers to gunshot injuries is replaced with dhariya injuries and by the attempted use of fire arms. In summation, it has been urged on behalf of the Accused that (i) The presence of the Accused at the scene of offence on 9 May 2020 is established by the cross FIR; (ii) The Post Mortem reports would demonstrate that all the injuries were sustained by the deceased with sharp edged weapons and not as a resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere elucidated in the judgment of this Court without attaching an exhaustive nature or character to them. This emerges from the following extract: 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 SCC 508, this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed: 17. Coming to the case at hand, it is found that when a stand was taken that the 2nd Respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the 2nd Respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside. 23. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on 22 October 2020 in the case of A-13 was relied upon, on grounds of parity, in the case of Pravin (A-10) and Kheta (A-15), by orders of a Single Judge of the High Court, dated 21 December 2020. In the case of Vishan (A-6), bail was granted on 21 December 2020 by the Single Judge who had passed orders dated 22 October 2020 in the case of A-10 and A-15. The only reasons which have been indicated in the order of the Single Judge is that bail was being granted taking into consideration the facts of the case, the nature of the allegations, gravity of offences and role attributed to the Accused. Thereafter, by an order dated 19 January 2021 bail was granted to Vanraj (A-16) purely on the basis of parity. On 20 January 2021, the order granting bail to Vanraj (A-16) was followed in the case of Dinesh (A-17) on the ground of parity. 26. From the above conspectus of facts, it is evident that essentially the only order which contains a semblance of reasoning is the order dated 22 October 2020 granting bail to A-13. As a matter of fact, the submissions which have been made on behalf of the Accused substantially dwell on the same line of logic in justifying the grant of bail on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 which was resolved with the intervention of the community. The cross FIR dated 13 May 2020 stated that Vishan (A-6) sent his nephew together with Akhabhai to the police station to retrieve his motorcycle. The cross FIR specifically states that the side of the Accused had decided to kill Akhabhai and in pursuance of this design he proceeded in his vehicle together with his brother and some of the other Accused and tried to kill Akhabhai by dashing his car against him. The translation of the actual intent in the cross FIR is questioned by Mr. Nikhil Goel by submitting that correctly translated from Gujarati, the intent would be to assault and not to kill. Be that as it may, the cross FIR indicates the presence of all these Accused and of their being armed with weapons to assault the deceased. A-6, in fact, states that in the course of the incident which took place, he was assaulted on his hand with a dhariya. The cross FIR contains a narration of how Akhabhai and the others tried to run away from the scene but were way-laid and assaulted. The cross FIR also then states that several women from the side of the Accused came to the scene of occurrence. 29. A reading of the cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o important to note that the presence of women on the side of the Accused is a fact which is noted in the cross FIR itself. Bail having been granted to A-18 to A-22 has not been the subject matter of the challenge in these proceedings. Hence, it is not necessary to dwell on that aspect any further. It is important for the purpose of evaluating this batch of cases at the present stage to also note the invocation of the provisions of the Section 149 of the Indian Penal Code. 32. Our analysis above would therefore lead to the conclusion that there has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity. 33. There is another aspect of this batch of cases which it is necessary to note. In the order of the High Court dated 22 October 2020 granting bail to Sidhdhrajsinh (A-13), there was a reference to the submission of the Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade any point of distinction. Subsequently, parity was the basis on which bail was sought in the case of Vanraj (A-16) who was granted bail on 19 January 2021. While granting bail, the Single Judge observed that: the learned advocates appearing on behalf of the respective parties do not press for further reasoned orders. A similar observation is contained in the order dated 20 January 2021 of the Single Judge granting bail to Dinesh (A-17). Finally on this aspect we would also advert to the order of the High Court dated 21 December 2020 granting bail to Vishan (A-6) which again contains a statement that the advocates appearing on behalf of the respective parties do not press for a further reasoned order . 35. We disapprove of the observations of the High Court in a succession of orders in the present case recording 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 in determining as to whether bail should be granted, the High Court, or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications. Yet a court dealing with the bail application should be satisfied, as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 9. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an Accused was charged of having committed a serious offence... 37. We are also constrained to record our disapproval of the manner in which the application for bail of Vishan (A-6) was disposed of. The High Court sought to support its decision to grant bail by stating that it had perused the material on record and was granting bail without discussing the evidence in detail taking into consideration: (1) The facts of the case; (2) The nature of allegations; (3) Gravity of offences; and (4) Role attributed to the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the judge who is deciding an application Under Section 439 of the Code of Criminal Procedure must emerge from the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued and that the reasons in support of orders granting bail comport with a judicial process which brings credibility to the administration of criminal justice. 38. What has been observed in the above extract equally applies to the facts of the present case. There is no question now of ordering a remand to the High Court in the case of Vishan (A-6) since the question of bail has been argued fully before this Court. Moreover, the case of Vishan (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather recalibrating the scales of justice . In Mahipal v. Rajesh Kumar Alias Polia (2020) 2 SCC 118 this Court observed as follows: 16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjee (2010) 14 SCC 496 (noted earlier). These decisions as well as the decision in Sanjay Chandra (supra) were adverted to in a recent decision of a two judge Bench of this Court dated 19 March 2021 in The State of Kerala v. Mahesh [Criminal Appeal No. 343 of 2021] where the Court observed: 22...All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant Accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses.... Similarly, the Court held that the grant of bail by the High Court can be set aside, consistent with the precedents we have discussed above, when such grant is based on non-application of mind or is innocent of the relevant factors for such grant. ..... 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