Ramesh Bhavan Rathod vs Vishanbhai Hirabhai Makwana Makwana (Koli) & Anr.

s. 439 – Grant of bail under – Recording of reasons – Held: Grant of bail u/s. 439 is a matter involving the exercise of judicial discretion – Judicial discretion in granting or refusing bail is not unstructured – 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 – 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. s. 439 – Bail – Grant of, by High Court – Order passed by the Judge observing that the order granting bail to the concerned accused not be treated as a precedent to claim bail on the basis of parity in any other case – Correctness of – Held: Said observation is inappropriate and erroneous – Whether parity can be claimed by any other accused on the basis of the order granting bail to concerned accused ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to the accused concerned – Whether an order granting bail is a precedent on grounds of parity is a matter for future adjudication if and when bail application is moved on the grounds of parity on behalf of the accused.

s. 439 – Bail – Grant of, by High Court – Observations of the High Court in succession of orders that the counsel for the parties “do not press for a further reasoned order” – Correctness of – Held: Observations of the High Court is disapproved – Consent of parties cannot obviate the duty of the High Court to apply a judicial mind and indicate its reasons why it has either granted or refused bail – 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.

Allowing the appeals, the Court

HELD: 1.1 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. 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. [Paras 20, 22][36-F-H; 37-A; 38-G-H; 39-A]

Ram Govind Upadhyay v. Sudharshan Singh (2002) 3 SCC 598:[2002] 2 SCR 526; Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 : [2010] 12 SCR 1165 – referred to

1.2 The High Court by its two orders granted bail to A-10 and A-15. Parity was sought with A-13 to whom bail was granted on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to A-16 on the ground that he was armed with a wooden stick and on the ground that A-10, A-15 and A-13 who were armed with sticks had been granted bail. The High Court 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 proceeded on the basis of parity on a simplistic assessment, which cannot pass muster under the law. [Para 23][39-D-H]

Neeru Yadav v. State of U.P. (2014) 16 SCC 508: [2014]

12 SCR 453 – referred to

1.3 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 ground that in the subsequent statement dated 3 June 2020 of the informant, the genesis and details of the incident which took place on 9 May 2020 as elaborated in the FIR have undergone a substantial change. [Para 26][40-G-H]

1.4 In granting bail to the six accused, the High Court 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. The FIR which has been lodged on 9 May 2020 adverts to the murder of five persons on the side of the informant in the course of the incident as a result of which offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) r/w Section 34 of the Penal Code were alleged. This is apart from the invocation of the provisions of Sections 25(1-b) A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act. The FIR specifically refers to the presence of the accused A-6, A-13, A-16, A-15, A-10 and A-17. It states that the accused had all come to the scene of offence with pistols, dhariyas and knives. A-6 and two others had fired from their rifles. Some of these accused-A-6, A-13, A-16, A- 15, A-10 and A-17 are alleged to have assaulted with dhariyas and lathis over the head and body of victims. All of them were rushed to the Government Hospital where they were pronounced dead. [Para 27][41-A-C; D-F]

1.5 Four days after the FIR was lodged by the informant on

9 May 2020, a cross FIR was lodged by A-6. This FIR contains a narration of the pre-existing dispute over land and to an incident which had taken place on 7 May 2020. A reading of the cross FIR indicates that an intent on the part of the accused to launch an assault on the deceased; the manner in which their pre-meditated design was sought to be achieved by assaulting the deceased persons. With the contents of the cross FIR as they stand, it was impossible for any judicial mind, while adjudicating upon the applications for the grant of bail, to gloss over the presence of the accused at the scene of occurrence, the accused being armed with weapons and their intent to assault them; and the actual incident, resulting in five homicidal deaths. [Paras 28-30][41-F-G; 42-C-D; E-G]

1.6 The Post Mortem reports which have been produced on the record indicate the extensive nature of the bodily injuries which were sustained by each of the five deceased persons. It is true that in the FIR it was alleged that the deceased were fired upon as a result of which they fell to the ground whereas, in the subsequent statement, it has been stated that the injuries were sustained as a result of dhariyas and sticks. 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. The High Court in its first order was persuaded to grant bail on the specious ground that the details of the incident as they appeared in the subsequent statement of the informant are at variance with the FIR. These are matters of trial. The High Court has, however, clearly overlooked the cross FIR and the implications of the content of the FIR on the basic issue as to whether bail should be granted. It is also 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. [Para 31][42-G-H; 43-A-D]

1.7 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. 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. [Para 32][43-E-F]

1.8 In the order of the High Court granting bail to 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 was not considered in the reasons which have been adduced by the Single Judge. That apart, 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. Having said this, the Judge observed that the order shall not be treated as a precedent to claim bail on the basis of parity in any other case. The said observation of the Single Judge is disapproved. 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 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 for any other person who is accused in the 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 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. In other words, the observations of the Single Judge are inappropriate and erroneous. Bail was thereafter granted to A-10 and A-15 on the ground of parity as claimed with the order granting bail to A-13. The Single Judge observed that the Additional Public Prosecutor had not made any point of distinction. Subsequently, parity was the basis on which bail was sought in the case of A-16. While granting bail the Single Judge observed that parties did not press for further reasoned orders. A similar observation is contained in the order of the Single Judge granting bail to A-17. The order of the High Court granting bail to A-6 again contains the same statement. 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”, is disapproved. [Paras 33-34][43-F-G, H; 4-A-D, E-H; 45-A]

Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC 446: [2012] 7 SCR 584 – referred to

1.9 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 for that matter, the Sessions Court deciding an application under Section 439 of the CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But 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. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. Thus, the manner in which a succession of orders in the present batch of cases has recorded that counsel for the “respective parties do not press for further reasoned order” are disapproved. If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny. [Para 35] [45-A-F]

1.10 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. [Para 36] [45-F-G]

Chaman Lal v. State of U.P. (2004) 7 SCC 525: [ 2004]

3 Suppl. SCR 584 – referred to

1.11 As regards the application for bail of A-6, 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 the facts of the case; the nature of allegations; gravity of offences; and the role attributed to the accused. As a matter of fact there was no discussion or analysis of circumstances at all. This lone sentence in the order of the Single Judge leaves a Court before which the order granting bail is challenged, completely without guidance on the considerations which weighed with the High Court in granting bail. In deciding whether or not to grant bail the High Court is not at a stage where it adjudicates upon guilt. This is to be analyzed during the course of criminal trial where evidence has been recorded. But surely, the order of the High Court must indicate some reasons why the Court has either granted or denied bail. The Sessions Judges in the instant case have indicated their reasons for the ultimate conclusion. This unfortunately was not observed in the order of the High Court. There is no question now of ordering a remand to the High Court in the case of A-6 since the question of bail has been argued fully before this Court. Moreover, the case of A-6 has been considered together with the entire batch of cases in which bail has been granted initially in the case of A-13, which has been followed on the grounds of parity in the case of the other accused. [Paras 37-38][46-C-H; 47-G-H; 48-A-B]

Sonu v. Sonu Yadav Crl Appeal No. 377 of 2021,

decided on 5.4. 2021 – relied on.

1.12 The orders granting bail to the respondent-accused A-6, A-10, A-13, A-15, A-16 and A-17 suffer from a clear perversity. The orders of the High Court are set aside. All the said accused are directed to surrender forthwith. [Paras 41- 42][51-C-D, F-G] Sanjay Chandra v. Central Bureau of Investigation 2012

(1) SCC 40; Mahipal v. Rajesh Kumar Alias Polia (2020)

2 SCC 118; Prabhakar Tewari v. State of U.P. [2020] 11 SCC 648; Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598:[2002] 2 SCR 526; Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496: [2010] 12 SCR 1165; The State of Kerala v. Mahesh Criminal Appeal No 343 of 2021 decided on 19.03.2021 – referred to