IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE
JURISDICTION
Criminal Appeal No 422 of 2021 (Arising out of SLP(Crl)
No 790 of 2021)
Ramesh Bhavan Rathod.................................................................... Appellant
Versus
Vishanbhai Hirabhai Makwana
Makwana (Koli) & Anr................. Respondents
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. 1246-1247/2021
AND WITH
Criminal Appeal No 427 of
2021 SLP(Crl) No. 1249/2021
J U D G M
E N
T
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, 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
1 “CrPC”
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
Karshan Koli (A-16) and Dinesh
Karshan Akhiyani (Koli) (A-17). The post-mortem was conducted on 10 May 2020. A panchnama
is alleged to have been conducted at the scene of offence
on the
next day, i.e. on 10 May 2020, resulting
in the recovery of, inter alia, two country made 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 following terms:
“..We
have decide to kill Akhabhai hence I myself along with my Brother Lakhbhai
Hira Koli, Dinesh Karshan Koli, and Lalubha Ghelubha Vaghela sat in Ritz Car
and proceeded towards Bhimasar at the
time I was driving the said Car and I tried
to dash the said Car with Akhabhai and tried to kill him. But Akhabhai ran away nearby and we came to our field (Wadi) There after around 12'0 Clock noon Akhabhai ring me on my mobile phone and said that why you
have tried to dashed by car of
Lalubha. I have given false reply that I am sitting
on my field (Wadi) I am not involved. Akhabhai told me we are coming to you field (Wadi) for quarrel be ready for quarrel at that time I myself along with
my brother Lakha Hira Koli, Ramsi
Koli, Pravin, Dhama Gela Koli, Devendrasinh ,
Iliyas Lalubha Vaghela, Bharat Mamu Koli, Dilip Mamu Koli, Bhagubha
Hansubha Vaghela, and his son Monsang Umedsang Vaghela, Prabhu Gela Koli,
Kheta Parbar Koli, Vanraj Karshan
Koli, Dinesh Darshan Koli were present their I
have
told this fact to them that Jeseng Umat along with his men are coming at our wadi for quarreling with us so we all armed with weapons we came near by our
field's boundary and we all are become ready for quarrel
and sat nearby Lakhman
Bijal's field and that time white color jeep came that at about place near about wadi Ramesh Bhavan Rathod come
down for jeep along with dhariya in his hand, Akhabhai came down with his gun, Akhabhai abused me “I have pride to save" at that time Ramesh Bhavan Rathod given blow with dhariya I have tried to save myself and I
have lifted up my left hand so
dhariya blow caused injury in my left hand I have fallen down on earth and blood coming out for my left hand at the time Akhabhai given blow of gun on my
brother namely Ramsi on his hand- at
that time Akha son Lalji - Amra Jeseng Umat - Vela Pancha Umat - Petha Bhavan Rathod - Akhabhai's
younger son Dharmendra - Papu Gabha Umat, came down from jeep and tried to attack
on me at that time my brother
Pravin Dhama Gela Koli, Devendrasinh, Iliyas Lalubha Vaghela,
Bharat Mamu Koli, Dilip Mamu Koli, Bhagubha
Hansubha Vaghela, and his son Mohansang Umedsang
Vaghela, Prabhu Gela Koli, Kheta Parbat Koli, Vanraj Karsan Koli, Dinesh Karsan Koli,
came along with the arms at that time
Akho and his person's tried to ran away with
the Scorpio jeep. My brother namely Lakhabhai dashed that jeep by tractor 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 CrPC was rejected by the Additional Sessions
Judge, Bhachau on 4 December 2020.
6
Among the twenty-two accused, who are named in the charge-sheet, these proceedings
arise out of the applications for bail which were moved before the High Court on behalf
of the six persons namely:
Vishan Heera Koli - Accused no.6
Pravin Heera Koli - Accused no.10 Sidhdhrajsinh Bhagubha Vaghela - Accused no.13 Kheta
Parbat Koli - Accused
no.15
Vanraj Karshan Koli - Accused no.16 Dinesh Karshan Akhiyani
(Koli) - Accused
no.17
7
The orders passed by the High Court granting bail to
the above persons are tabulated below:
|
Sl No. |
Name of the accused |
Accused No. |
Date of
order |
|
1 |
Vishan Heera
Koli |
6 |
21 December 2020 |
|
2 |
Pravin Heera
Koli |
10 |
21 December 2020 |
|
3 |
Sidhdhrajsinh Bhagubha Vaghela |
13 |
22 October 2020 |
|
4 |
Kheta Parbat Koli |
15 |
21 December 2020 |
|
5 |
Vanraj Karshan
Koli |
16 |
19 January 2021 |
|
6 |
Dinesh Karshan Akhiyani (Koli) |
17 |
20 January 2021 |
At this stage, it is necessary to note that A-10 and A-15 were both
granted bail on 21 December 2020 on
the basis of parity claimed on the basis of the order dated 22 October 2020 granting bail to A-13. The
orders dated 19 January 2021 granting bail to
A-16 and to A-17 on 20
January 2021 are also based on parity.
8
Chronologically, the first order of the High Court granting
bail was to Sidhdhrajsinh
Bhagubha Vaghela (A-13) on 22 October 2020. The High Court observed thus:
“14. Having considered the rival submissions and having gone through the materials on record, it
appears that though the name of the
applicant and is shown in the FIR for the alleged offences
punishable under Sections
302, 143, 144,
147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C.,
offence
punishable under Section 25(1-b)A, 27 and 29 of the Arms Act and Section 135 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 investigation; and
(iii)
The trial was likely to take time as 110 witnesses were to be examined.
Reliance was placed on the
decision of this Court in Sanjay Chandra v. Central Bureau of Investigation2.
The orders granting bail to A-10 and A-15 (21 December 2020); to A-16 (19 January
2021); and to A-17
(20 January 2021) are based on parity.
2 2012 (1) SCC 40
10
The main accused, Vishan (A-6) was granted bail on 21
December 2020. The reasons adduced by
the Single Judge of the High Court are contained in paragraphs 7, 8 and
9 of the order which reads thus:
“7.
Having heard the learned advocates for the parties and perusing the material
placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role
attributed to the accused,
without discussing the
evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge
the applicant on regular bail.
8. Looking to the overall
facts and circumstances of the present
case, I am inclined to consider the case of the applicant.
9. This Court
has also taken into consideration the law laid
down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of
Investigation, reported in [2012] 1 SCC
40.”
11
The allegations against all the accused in the present
batch of appeals arise out of the same
incident. All the appeals have hence been heard
together.
12
Mr Vinay Navare,
Senior Counsel and Ms Jaikriti
S Jadeja, Counsel
have appeared in support of
the appeals, all of which had been filed by the informant. Mr Nikhil Goel, Counsel appeared on behalf of the
respondent-accused. In pursuance of the
notice issued on 5 February 2021, Mr Aniruddha P Mayee has entered appearance on behalf of the State of Gujarat. Insofar
as the accused are concerned, the position before the Court
as recorded in the order
dated 5 April 2021 reads thus:
“SLP (Crl) 790/2021 - sole accused represented by Mr Nikhil Goel
SLP (Crl) 1245/2021 - sole accused – no appearance entered despite service
SLP (Crl) 1246-47/2021 -
two accused represented by Mr Purvish Malkan and Mr Nikhil
Goel SLP (Crl) 1248/2021 - sole accused – no appearance entered
despite service
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 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
following submissions have been urged:
(i)
The cross FIR lodged by Vishan (A-6) on 13 May 2020 indicates that an incident
had taken place on 9 May 2020;
(ii)
During the course of the incident, five homicidal deaths resulted on the side of the informant (of the FIR dated
9 May 2020);
(iii)
The cross FIR lodged on 13 May 2020 contains
a reference to:
a. The accused being armed with weapons;
b.
Pre-meditation on the part of the accused to waylay
and assault the side of the informant; and
c.
The assault being committed by the accused
as the deceased were attempting to flee after their vehicle had
been cornered by two tractors belonging to the side of the accused.
(iv)
The presence of the accused
and the role attracted to them has been spelt
out not only in the FIR but it is evident from the cross FIR which was subsequently registered on 13 May 2020 at the behest of Vishan
(A-6);
(v)
The cross FIR which sets out the version of the
accused would indicate that the accused were the aggressors; and
(vi)
Whether the five deaths were caused as a result of
firearm injuries (as alleged in the
FIR dated 9 May 2020) or due to dhariyas (as alleged in the statement recorded on 3 June 2020) is not relevant
at this stage. The presence of the accused,
the pre-meditation on their part, the assault committed on persons belonging to the side of the informant and
the resultant five homicidal deaths which form the genesis of the incident should
be sufficient to deny bail.
14
On the above premises, it has been urged that the High
Court has committed a grievous error
in granting bail in the first instance on 22 October 2020 and in following the earlier order on the basis of parity.
Moreover, it has been submitted that the order
granting bail to Vishan (A-6), who is the main accused, on 21 December
2020 does not contain any reasons
whatsoever. It was urged that while granting bail, the Chief Justice has merely observed that the Advocates who
appeared on behalf of the respective parties
“do not press for further reasoned order”. This, it was urged, is an anathema
to criminal jurisprudence. The High
Court while exercising its jurisdiction under Section 439, is required
to apply its mind objectively and indicate 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 (A-6) was a resident
of Anjar and had come to Hamirpur;
b.
There was an earlier incident
which had taken
place involving an altercation with the
deceased Akhabhai;
c.
A compromise was arrived at in the course of the dispute with the intervention of the
community;
d. As the cross FIR by Vishan (A-6) narrates,
on 9 May 2020- the conduct of
the accused
was pre-meditated;
e.
The incident took place at 1:00 pm when the side of
the informant (in the FIR dated 9 May
2020) was returning from their fields for lunch when they were waylaid and obstructed by vehicles of
the accused both at the front and the rear;
f.
The side of the accused had collected 22 persons for
executing a pre- meditated design to assault
the group of the informant
with deadly weapons;
g.
Whether or not the rifles had been fired, the panchnama notes the recovery
of the weapons;
h.
Both Vishan (A-6) and Sidhdhrajsinh Bhagubha Vaghela (A-13) have criminal antecedents, there being earlier
FIRs registered against
them;
i.
The Sessions Judge noted that A-6 had even attempted
to obtain bail on medical grounds
on the basis of a false identity; and
j.
The complicity of the accused, their intent, presence
and role are amply supported by the cross
FIR.
17
Mr Nikhil Goel, learned Counsel appearing on behalf of
the accused has on the other hand supported the orders of the High Court granting
bail on the following submissions:
(i)
The FIR which arises out of the incident of 9 May 2020
implicates as many as 22 persons;
(ii)
Accused 18-22, who are women, were granted bail, which is not the subject
matter of challenge;
(iii)
Eleven accused are still in jail of whom eight persons are alleged to have wielded sharp-edged weapons
there;
(iv)
The charge sheet which has been submitted after
investigation names 110 witnesses;
(v)
A charge sheet
has been submitted in the cross-FIR as well;
(vi)
There was a free fight in the course of the incident on
9 May 2020 resulting in injuries on the side of the accused and five deaths on the side of the informant;
(vii)
The genesis of the incident, as narrated in the FIR
registered on 9 May 2020, has been
substantially altered in the course of the statement of the informant recorded
on 3 June 2020;
(viii)
The FIR made no reference to a free fight between the
two groups or to the injuries which were caused to the accused;
(ix)
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 result of fire arms or sticks;
(iii)
There are three versions of the incident, which are
contained in the FIR, the subsequent statement
and the cross FIR. A charge sheet has also been submitted
after the investigation of the cross FIR;
(iv)
As many as twenty-two persons have been roped
in;
(v)
While the Sessions Judge had noticed the improvement
which was made in the subsequent
statement, bail was denied only on the basis of the presence of the accused;
and
(vi)
In the event that this Court holds that adequate
reasons have not been adduced in the
order dated 21 December 2020 granting bail to A-6 an order of remand may be warranted.
18
The submissions of Mr Nikhil Goel have been buttressed
by Mr J S Atri, Senior Counsel by
placing reliance on the decision in Sanjay
Chandra v. Central Bureau of Investigation3. Learned
Senior Counsel specifically highlighted that the subsequent statement dated 3 June 2020 has materially
altered the genesis as well as the details of
the incident. Similar submissions have been urged by Mr Purvish Jitendra Malkan, learned
Counsel appearing on behalf
of some of the accused
by submitting that
(i)
This is a case involving an 'over implication';
3 2012 (1) SCC 40
(ii)
The absence of blood marks
on the clothes of Kheta Parbat Koli (A-15) and on the stick is a
pointer to his innocence;
and
(iii)
It was the complainant’s side which had committed the initial act of aggression.
19
The rival submissions now fall for analysis.
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
Singh4 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. 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 grant of
bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of
bail.”
This Court further
laid down the standard for overturning an order granting
bail in the following terms:
“3.
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.”
21
The principles governing the grant of bail were reiterated by a two judge Bench in
Prasanta Kumar Sarkar v. Ashis Chatterjee5:
“9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is
equally incumbent upon the High
Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court
on the point. It is well settled
that, among other circumstances, the factors to be borne in mind while considering an application for bail
are:
(i)
whether there is any prima facie or reasonable ground
to believe that the accused
had committed the offence;
(ii)
nature and gravity
of the accusation;
(iii)
severity of the punishment in the event of conviction;
(iv)
danger of the accused absconding or fleeing, if released on bail;
(v)
character, behaviour, means, position and standing of the accused;
(vi)
likelihood of the offence being repeated;
(vii)
reasonable apprehension of the witnesses being influenced; and
(viii)
danger, of course, of justice being thwarted
by grant of bail.
[internal citation omitted]”
Explicating the power of this Court to set aside an order granting
bail, this Court held:
“10.
It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice
of non-application of mind, rendering it to be illegal...”
22
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. In
Neeru Yadav v. State of U.P.6, 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. 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.
24
The narration of facts in the earlier part of this
judgement would indicate that on 22
October 2020, a Single Judge of the High Court granted bail to Sidhdhrajsinh
(A-13), The Single Judge noted that the name of A-13 is shown in the FIR for the incident which took place on 9 May 2020. The
circumstance which weighed with the Single Judge
was that the informant in the subsequent statement which was recorded twenty- five days after the FIR on 3 June 2020,
does not advert to overt
act which was attributed
in the FIR; though the presence of A-13 is shown, no specific role is
attributed to him in the subsequent statement. Observing that the details in regard to the chronology of events which took place
on 9 May 2020 "is
in effect substituted" in the
subsequent statement dated 3 June 2020, the High Court held that it
appears that A-13 was roped in due to
the pendency of previous proceedings and enmity with the side of the informant. Holding
that this was sufficient to grant bail, the learned
Judge observed:
“15. Learned Advocates appearing on behalf of
the respective parties do not press
for further reasoned order.” (emphasis supplied)
25
The order which was 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 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.
27
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. 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) read with Section 34 of the Indian
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 which was lodged on 9 May 2020 notes that the
incident took place at 1:00 pm. A group of persons
from the side of the informant, including the deceased, were returning home at about 1:00 pm. The genesis of the incident
is that the path of their vehicle was blocked
both from the front and the rear by tractors of the accused. The FIR
specifically refers to the presence
of the accused Vishan (A-6), Sidhdhrajsinh Bhagubha Vaghela (A-13), Vanraj Karshan Koli (A-16), Kheta Parbat
Koli (A-15), Pravin Heera Koli (A-10) and Dinesh
Karshan Akhiyani (Koli) (A-17). It states 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 – Vishan (A-6), Sidhdhrajsinh (A-13), Vanraj (A-16), Kheta (A- 15), Pravin (A-10) and Dinesh (A-17) are
alleged to have assaulted with dhariyas and lathis over the head and body of Akhabhai,
Pethabhai, Amara, Lalji and Vela. All of them were rushed to the Government
Hospital where they were pronounced dead.
28
Four days after the FIR was lodged by the informant on
9 May 2020, a cross FIR was lodged by
Vishan (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 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 FIR which was lodged
by Vishanbhai (A-6) on 13 May 2020 indicates:
(i)
An intent on the part of the accused to launch an assault on the deceased;
(ii)
The manner in which their pre-meditated design was sought
to be achieved by assaulting Akhabhai and the other deceased persons;
(iii)
An effort was made by Akhabhai and the other deceased to run away but this was prevented in the course of the assault; and
(iv)
The accused had come armed with weapons
to execute their intent.
30
In other words 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:
(i)
The presence of the accused
at the scene of occurrence on 9 May 2020;
(ii)
The accused being armed with weapons to accost Akhabhai
and the other persons accompanying him;
(iii)
The intent to assault them; and
(iv)
The actual incident in the course of which Akhabhai
and four other persons of his group were waylaid
and assaulted, resulting in five homicidal deaths.
31
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 dated 9 May 2020, it was alleged that the deceased were fired upon as a result of
which they fell to the ground whereas, in the
statement dated 3 June 2020, 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 dated 22 October 2020 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 dated 3 June 2020 are at variance with the FIR dated 9
May 2020. These are matters of trial.
The High Court has, however, clearly
overlooked the cross FIR dated 13 May 2020 lodged by A-6 and the implications of the content of the FIR on the basic issue as to whether
bail should be granted. As a matter of fact, 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. 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 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 Singh7, 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.
7 (2012) 9 SCC 446
Having said this, the learned Judge observed that the order shall not be treated
as a precedent to claim
bail on the basis of parity in any other case.
34
We are left unimpressed with and disapprove of the
above observation of the Single
Judge. 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 which have been noticed above are inappropriate and erroneous. Moreover, as observed above in
para 23, even while considering the ground
of parity not only the weapon, but individual role attributed to each
accused must be considered. We have
dwelt on this aspect of the matter in order to ensure that the position in law is corrected in terms as
explained above. As we have noted earlier, bail was thereafter granted to Pravin (A-10) and Kheta (A-15) by
orders dated 21 December 2020 on
the ground of parity as claimed with the order dated 22 October 2020. 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 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 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. We must, therefore, disapprove of 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". If this
is a euphemism for not recording
adequate reasons, this kind of a formula cannot shield the order from
judicial scrutiny.
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.8 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…”
8 (2004) 7 SCC 525
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 accused.
As a matter of fact there is 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. We appreciate that
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 present case have indicated their reasons for the ultimate conclusion.
This unfortunately has not been observed in the
order of the High Court dated 21 December 2020. Dealing with a similar
formulation as in the present case,
this Court has held recently held as follows in Sonu v. Sonu Yadav9:
“11. In the earlier part of this judgment,
we have extracted the lone sentence
in the order of the High Court which is intended to display some semblance of reasoning for justifying the grant of bail. The sentence which we have extracted
earlier contains an omnibus amalgam of (i) “the entire facts
and circumstances of the case”; (ii) “submissions of learned Counsel
for the parties”;
(iii) “the nature
of offence”;
(iv) “evidence”; and (v) “complicity of accused”. This is
9 Criminal Appeal No. 377 of 2021, decided
on 5 April 2021
followed
by an observation that the “applicant has made out a case for bail”, “without expressing any opinion on the merits of the case”. This does not constitute the kind of reasoning which is expected of a judicial order. The
High Court cannot be oblivious, in a case such as the present,
of the seriousness of the alleged offence, where a woman has met an unnatural end within a year of marriage. The seriousness of the alleged offence has to be evaluated
in the backdrop of the allegation that she was being harassed for dowry; and that a telephone call was received from the accused in close- proximity to the time of death, making a
demand. There are specific
allegations of harassment against the accused on the ground of dowry. An order without reasons is fundamentally contrary to the norms which guide the
judicial process. The administration
of criminal justice by the High Court cannot 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 CrPC 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-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.
39
The High Court has relied upon the decision of this Court in Sanjay Chandra v.
Central Bureau of Investigation10. While considering the grant of bail in certain cases arising out of the 2G Spectrum Scam, this Court observed as follows:
“21.
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty must be considered a punishment, unless
it is required to ensure that an accused person
will stand his trial when called upon. The courts owe more than verbal respect to the principle
that punishment begins after conviction, and that every
man is deemed to be innocent until
duly tried and duly found
guilty.”
Elaborating further,
the Court held
“22.
From the earliest times, it was appreciated that detention in custody pending completion of trial
could be a cause of great hardship.
From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such
cases, “necessity” is the operative
test. In this country, it would be quite
contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect
of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the witnesses
if left at liberty, save in the most extraordinary circumstances.”
At the same time, the Court recognized in paragraph 24 of its decision that:
“24.
In the instant case, we have already noticed that the “pointing
finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged
are economic offences which
have resulted in loss to the State exchequer.
Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the
allegation. In our view, seriousness
of the charge 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
10 2012 (1) SCC 40
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 Polia11 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 a person to whom bail has been granted. In Neeru
Yadav v. State ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , the accused
was
granted bail by the High Court [Mitthan
Yadav v. State of U.P., 2014 SCC OnLine All 16031] . In
an appeal against the order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All
16031] of the High Court, a two-Judge Bench of this Court surveyed the precedent on the principles
that guide the grant of bail. Dipak
Misra, J. (as the learned Chief Justice then was) held: (Neeru Yadav case [Neeru Yadav v. State of U.P.,
(2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , SCC p. 513,
para 12)
“12. … It is well settled in law that cancellation of bail after it is granted because
the accused has misconducted himself
or of some supervening circumstances warranting such cancellation have occurred is in a different
compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the
relevant factors which should have
been taken into consideration while
dealing with the application for bail have not
been taken note of, or bail is founded on irrelevant considerations, indisputably the superior
court can set aside the order of such
a grant of bail. Such a case belongs
to a different category and is in a separate
realm. While dealing with a case of second nature,
the Court does not dwell upon the
violation of conditions by the accused or the supervening circumstances that have happened subsequently. It,
11 (2020) 2 SCC 118
on the contrary, delves into the justifiability and the soundness of the order
passed by the Court.”
In Mahipal (supra), this Court outlined
the standards governing
the setting aside of bail by this Court in the following terms:
“17.
Where a court considering an application for bail fails to consider relevant factors, an appellate court may
justifiably set aside the order granting bail. An appellate
court is thus required to consider
whether the order granting bail suffers from a non-application of mind
or is not borne out from a prima facie
view of the evidence
on record.”
These two standards were reiterated in a recent
decision of this Court in Prabhakar
Tewari v. State of
U.P.12.
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 Singh13 and Prasanta
Kumar Sarkar v. Ashis Chatterjee14(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. Mahesh15 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….”
12 2020) 11 SCC
648
13 (2002) 3 SCC 598
14 (2010) 14 SCC 496
15 Criminal Appeal No 343 of 2021
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.
41
For the reasons which we have indicated above, we have
come to the conclusion that the
orders granting bail to the respondent-accused 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) suffer from a clear perversity. We accordingly allow
these appeals and set aside the following orders of the High Court:
|
Sl No. |
Name of the accused |
Accused No. |
Date of order by the High Court |
SLP No. |
|
1 |
Vishan Heera Koli |
6 |
21 December 2020 |
790 of 2021 |
|
2 |
Pravin Heera Koli |
10 |
21 December 2020 |
1246-47 of 2021 |
|
3 |
Sidhdhrajsinh Bhagubha Vaghela |
13 |
22 October 2020 |
1249 of 2021 |
|
4 |
Kheta Parbat Koli |
15 |
21 December 2020 |
1246-47 of 2021 |
|
5 |
Vanraj Karshan Koli |
16 |
19 January 2021 |
1248 of 2021 |
|
6 |
Dinesh Karshan Akhiyani (Koli) |
17 |
20 January 2021 |
1245 of 2021 |
42
All the above accused are directed to surrender forthwith.
The copy of the order shall be forwarded to the Sessions Judge to secure
compliance forthwith.
43
Pending application(s), if any, stand disposed of.
…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[M R Shah]
New Delhi;
April 20, 2021
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