NATURE OF CRIME IS THE BASIC CONDITION WHILE CONSIDERING BAIL APPLICATION: 20. The first aspect of the case which stares in the face is the singular absence in the judgment of the High Court to the nature and gravity of the crime. The incident which took place on 9 May 2020 resulted in five homicidal deaths. The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. 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 the two-judge Bench decision of this Court in Ram Govind Upadhyay v. Sudharshan Singh, (2002) 3 SCC 598 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 considerations which govern the grant of bail were elucidated in the judgment of this Court without attaching an exhaustive nature or character to them.
APPLICATION OF PRINCIPLE OF PARITY IN BAIL APPLICATION: 23. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21 December 2020, the High Court granted bail to Pravin Koli (A – 10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22 October 2020 on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. 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. 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.
CRIMINAL ANTECEDENTS OF THE ACCUSED MUST BE CONSIDERED: 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 Public Prosecutor to the criminal antecedents of A-13 bearing on previous FIRs registered against him in 2017 and 2019. This aspect bearing on the criminal antecedents of A-13 has not been considered in the reasons which have been adduced by the Single Judge. In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, this Court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail. That apart, it is important to note that the ground on which A-13 was granted bail is that in the subsequent statement dated 3 June 2020, the overt act which was attributed in the FIR was found to be missing.
REASONED ORDER & APPLICATION OF MIND IS NECESSARY: 36. Grant of bail under Section 439 of the CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail – as in the case of any other discretion which is vested in a court as a judicial institution – is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. 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. This Court in Chaman Lal v. State of U.P., (2004) 7 SCC 525 in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non-application of mind. This Court observed:
“8. Even on a cursory perusal the High Court’s order 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…”
40 The considerations which must weigh with the Court in granting bail have been formulated in the decisions of this Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Prasanta Kumar Sarkar v. Ashis Chatterjee, (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[15] 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.
PARTY: RAMESH BHAVAN RATHOD vs.VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) AND ANOTHER – Criminal Appeal No 422 of 2021 (Arising out of SLP (Crl.) No 790 of 2021) – 20-04-2021.
