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?
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….”
1
Reportable
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
2
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”
3
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
4
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
5
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 AkhabhaiVelabhai-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
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.
7
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
8
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”
9
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
10
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.
11
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
12
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 premeditated 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;
13
(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 sharpedged 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.
14
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
15
(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.
4
(2002) 3 SCC 598
16
(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;
5
(2010) 14 SCC 496
17
(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.”
6
(2014) 16 SCC 508
18
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 twentyfive 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
19
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.
20
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 (A15), 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.
21
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.
22
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
23
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
24
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:
25
"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
26
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
27
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
28
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 closeproximity 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.
29
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
30
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
31
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
32
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
33
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
