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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
RAMESH BHAVAN RATHOD – APPELLANT
VERSUS
VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR. – RESPONDENTS
CRIMINAL APPEAL NO 422 OF 2021(ARISING OUT OF SLP(CRL) NO 790 OF 2021) WITH CRIMINAL APPEAL NO 423 OF 2021 SLP(CRL) NO. 1245/2021 WITH CRIMINAL APPEAL NO 426 OF 2021, SLP(CRL) NO. 1248/2021 WITH CRIMINAL APPEAL NOS 424-425 OF 2021,
SLP(CRL) NO. 1246-1247 OF 2021 AND WITH CRIMINAL APPEAL NO 427 OF 2021, SLP(CRL) NO. 1249 OF 2021
Decided On : 20-04-2021
(A) Criminal Procedure Code, 1973 – Section 439 – Bail – Grant of – Grant of bail under Section 439 of Cr.P.C. is a matter involving exercise of judicial discretion – Judicial discretion in granting or refusing bail, as in case of any other discretion which is vested in a court as a judicial institution, is not unstructured – Duty to record reasons is a significant safeguard which ensures that discretion which is entrusted to court is exercised in a judicious manner – Recording of reasons in a judicial order ensures that thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. (Para 36)
(B) Criminal Procedure Code, 1973 – Section 439 – Bail – Grant of – FIR registered for offences under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of Indian Penal Code, Sections 25(1-b) A, 27 and 29 of Arms Act and Section 135 of Gujarat Police Act – Orders passed by High Court granting bail fail to pass muster under law – They are oblivious to, and innocent of, nature and gravity of alleged offences and to severity of punishment in event of conviction – Parity while granting bail must focus upon role of 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 grant of bail on the basis of parity has been established – In deciding aspect of parity, role attached to accused, their position in relation to incident and to victims is of utmost importance – High Court has proceeded on the basis of parity on a simplistic assessment which again cannot pass muster under law – In granting bail to six accused, High Court has committed a serious mistake by failing to recognize material aspects of case, rendering orders of High Court vulnerable to assail on the ground of perversity – Whether deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for grant of bail was made out once a plain reading of cross FIR indicates both presence of accused and execution of their plan to assault side of informant with weapons which were in possession of accused – These are matters of trial. (Paras 22, 23, 27 and 31)
(C) Criminal Procedure Code, 1973 – Section 439 – Bail – Grant of – FIR registered for offences under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of Indian Penal Code, Sections 25(1-b) A, 27 and 29 of Arms Act and Section 135 of Gujarat Police Act – Whether parity can be claimed by any other accused on the basis of the order granting bail to A-13 ought not to have been pre-judged by Single Judge who was dealing only with application for grant of bail to A-13 – Observation that grant of bail to A-13 shall not be considered as a precedent for any other person who is accused in FIR on grounds of parity does not constitute judicially appropriate reasoning – 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 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 grant of bail on reasons of parity is made out – Grant of bail is a matter which implicates liberty of accused, interest of State and victims of crime in proper administration of criminal justice – In determining as to whether bail should be granted, High Court, or Sessions Court deciding an application under Section 439 of Cr.P.C., would not launch upon a detailed evaluation of facts on merits since a criminal trial is still to take place – These observations while adjudicating upon bail would also not be binding on outcome of trial – But 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 – Consent of parties cannot obviate duty of High Court to indicate its reasons why it has either granted or refused bail – Proper enforcement of criminal law is a matter of public interest – Order of High Court must indicate some reasons why Court has either granted or denied bail – Orders granting bail to respondent-accused suffer from clear perversity – Orders of High Court set aside. (Paras 34, 35 and 41)
Facts of the case:
Present batch of five appeals arises from orders of the High Court of Gujarat granting bail, under Section 439 of the Code of Criminal Procedure 19731, to six persons who have been implicated in five homicidal deaths.
Findings of Court:
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-6) has been considered together with the entire batch of cases in which bail has been granted- initially on 22 October 2020 in the case of Sidhdharajsinh (A-13), which has been followed on the grounds of parity in the case of the other accused.
Result : Appeals allowed.
Key Points: - The judgment discusses bail as a judicial discretion requiring recording of reasons and proper application of mind (!) (!) (!) . - It criticizes High Court’s reliance on parity and mere similarity of weapons without considering accused roles and the gravity of offences; emphasizes cross-FIR content and five deaths to assess seriousness (!) (!) (!) (!) . - It cites Sanjay Chandra and Ram Govind Upadhyay standards for factors to weigh in bail decisions, including gravity, likelihood of repetition, witnesses’ safety, and prima facie involvement (!) (!) (!) (!) (!) . - It holds that bail orders granting parity-based relief without adequate reasoning constitute perversity and are set aside; directs reconsideration with proper reasoning (!) (!) . - It concludes by setting aside specific High Court bail orders for six accused and remanding to Sessions for compliance, with details of accused and dates of prior orders (!) (!) (!) (!) (!) (!) .
JUDGMENT :
Dr. Dhananjaya Y Chandrachud, J
1. This batch of five appeals arises from orders of the High Court of Gujarat granting bail, under Section 439 of the Code of Criminal Procedure 19731[“CrPC”], to six persons who have been implicated in five homicidal deaths.
2. A First Information Report (“FIR”) being CR No 11993005200314 was registered on 9 May 2020 at Police Station Aadesar, District East Kachchh - Gandhidham for offences under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of the Indian Penal Code, Sections 25(1-b) A, 27 and 29 of the Arms Act and Section 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 Koli, Devendrsinh alias Lalubha Ghelubha Vaghela, Vishan Hira Koli, Bharat Mamu Koli, Dilip Mamu Koli, Ramshi Hira Koli, Pravin Hira Koli, Bhaghubha Hasubha Vaghela, Mohansang Umedasng Vaghela and Vanraj Karsan Koli and Dinesh Karsan Koli all come with weapons Pistol, Dhariya, Knife from the thorny fence nearby, in which Dhama Gela Koli and Devendrasinh alias Lalubha Gelubha Vaghela and Visan Hira Koli and Bharat Mamu Koli had fired rounds from Rifles in their hand targeting Akhabhai and others at that time. Akhabhai Jeshangbhai Umat my Brother Pethabhai Bhavanbhai Rathod and Amara Jeshang Umat and Lalji Akhabhai Umat and Vela Panchabhai Umat injured due to firing and laying on land and that time Lakha Hira Koli's Wife, Kanji Bijal Koli's Wife Lakhman Bijal Koli's Wife and Dhama Ghela Koli's Wife and Vishan Hira Koli's Wife also come there, their name is I do not know, and Visan Hira Kofi talk with Akhabhai that why you are cultivating my father and grand father's land that is our land we also said before that this land you do not cultivate so today your life is over. This was said by Visan Hira Koli and thereafter Dilip Mamu Koli, Ramshi Hira Kofi, Bhaghubha Hasubha Vaghela Mohansang Umedsang Vaghela and Prabhu Ghela Koli, with Dhariya in their hands and in the hands Pravin Hira Koli, Siddhrajsinh Bhaghubha Vaghela, Kheta Parbat Koli, Vanraj Karsan Koli, and Dinesh Karsan Kofi with Lathi (Wooden Stick) and all together assaulted blindly with Dhariya & Lathi over the head and body of Akhabhai Jeshangbhai Umat and my brother Pethabhai Bhavanbhai Rathod and Amara Jeshang Umat and Lalji Akhabhai Umat and Vela Panchabhai Umat and those people when assaulted that time all five are shouting "save save" but those people are in large gathering so I cannot go near so I cannot save those five those because they will kill me so I ran away from and I go to my Village…”
3. The incident resulted in the death of five persons. Among the twenty-two accused are Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Ka
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(1) Bail – Order granting bail in a mechanical manner, without recording reasons, would suffer from vice of non-application of mind, rendering it illegal.(2) Court deciding bail application cannot co....
(1) Application for cancellation of bail stands on a different footing than challenging order passed by High Court/Appellate Court releasing accused on bail.(2) Bail cannot be granted without looking....
The cancellation of bail granted to an accused will have an impact on the bail granted to co-accused also.
Points of Law : High Court has misapplied itself, both to the facts and in law while granting bail in a criminal case involving a serious offence where two murders have resulted in the incident.
Court granting bail cannot obviate its duty to apply judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail.
(1) Bail – For grant or denial of bail, nature of crime has huge relevancy – Importance of assigning reasoning for grant or denial of bail can never be undermined.(2) Cancellation of bail – Bail once....
Bail – There cannot be any undue discrimination in matter of grant of bail.
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