LAW FOR ALL

Friday, April 23, 2021

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….”

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….”

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

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

“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 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 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.

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 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;

(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.

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';

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.

(2002) 3 SCC 598

(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.

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;

(2010) 14 SCC 496

(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.

, 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.”

(2014) 16 SCC 508

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

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 (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.

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.

(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…”

(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 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.

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

Tuesday, April 20, 2021

the status of ‘Gokarna Mahabaleshwara Temple’. A Notification dated 30.04.2003/01.05.2003 was issued under Section 23 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 notifying the temples mentioned therein as coming within the purview of the Act. In the said notification, the ‘Gokarna Mahabaleshwara Temple’ was also included at Serial No.92. The said position remained so until the petitioners herein claiming to be aggrieved by such notification made a representation seeking that the temple be deleted from the notification since according to them it was attached to the petitioners’ ‘Mutt’ and was therefore not covered by the Act in view of Section 1(4) of the Act, 1997. Pursuant thereto the official respondents through the Government Order dated 12.08.2008 ordered the deletion of ‘Shri Mahabaleshwara Temple’, Gokarna from the list of notified temples published on 30.04.2003. The Deputy Commissioner was accordingly directed to hand over the administration of the temple to the petitioner ‘Mutt’.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.16311636/2021

(Arising out of S.L.P. (Civil) Nos.2401524020 of 2018)

Ramachnadrapura Math .…Petitioner (s)

Versus

Sri Samsthana Mahabaleshwara

Devaru & Ors. …. Respondent(s)

With

Civil Appeal No.1637/2021 @ SLP (C) No.24321/2018

and

Civil Appeal Nos.16381643/2021 @ SLP (C) Nos.6443

6448/2021 (D.No.6578/2021)

O R D E R

1. The petitioners are before this Court claiming to be

aggrieved by the order dated 10.08.2018 passed by the High

Court of Karnataka in W.P. No.30609/2008 and connected

petitions. The issue raised in the petitions was with regard to

the status of ‘Gokarna Mahabaleshwara Temple’. A

Notification dated 30.04.2003/01.05.2003 was issued under

Section 23 of the Karnataka Hindu Religious Institutions and

Charitable Endowments Act, 1997 notifying the temples

mentioned therein as coming within the purview of the Act. In

the said notification, the ‘Gokarna Mahabaleshwara Temple’

was also included at Serial No.92. The said position remained

so until the petitioners herein claiming to be aggrieved by

such notification made a representation seeking that the

temple be deleted from the notification since according to

them it was attached to the petitioners’ ‘Mutt’ and was

therefore not covered by the Act in view of Section 1(4) of the

Act, 1997. Pursuant thereto the official respondents through

the Government Order dated 12.08.2008 ordered the deletion

of ‘Shri Mahabaleshwara Temple’, Gokarna from the list of

notified temples published on 30.04.2003. The Deputy

Commissioner was accordingly directed to hand over the

administration of the temple to the petitioner ‘Mutt’.

2. The said Government Order dated 12.08.2008

whereunder the temple was denotified was assailed in public

interest by the devotees and representatives of the former

trustees by filing writ petitions in the High Court of

Karnataka. All the writ petitions were taken up together for

consideration by the Division Bench and on a detailed

consideration the Government Order dated 12.08.2008 was

quashed, result of which was that the temple in question

remained to be a notified temple under Act, 1997. It was held

that a determination was required to be made as to whether

the temple belonged to the ‘Mutt’ by a competent Civil Court

since disputed questions of fact cannot be decided in a writ

petition. However, taking note of various other aspects

including the validity of Act, 1997 itself pending

consideration before this Court, the Division Bench has

constituted the Committee termed as “Overseeing Committee”

under the Chairmanship of the Deputy Commissioner, Uttara

Kannada District and also requested a former Judge of this

Court to be the advisor to the said committee. The said

arrangement was made till the committee in terms of Act,

1997 is constituted.

3. The petitioner ‘Mutt’ would, therefore, get divested of

the right to administer the temple and, as such, claiming to

be aggrieved is before this Court. The Division Bench of the

High Court on pronouncing the order, at the request on

behalf the petitioner herein had stayed the implementation of

the order for a period of one month due to which petitioner

continues to be in charge. This Court while directing notice to

the respondent on 07.09.2018 extended the benefit of the

interim order granted by the High Court, which was

thereafter clarified to indicate that the status quo was to be

maintained.

4. In that light though the petitions were taken up for

final consideration, it was noticed that the hearing of the

petition will have to be exhaustive and will require deeper

consideration. That apart, the Act, 1997 under which the

notification was made in the year 2003, was thereafter

declared as unconstitutional by the Division Bench of the

High Court of Karnataka in another proceeding, through the

judgment dated 08.09.2006. The said judgment is assailed

before this Court in the case of State of Karnataka vs.

Sahasra Lingesshwara in C.A. No.5924/2008 wherein the

judgment of the High Court is stayed through the order dated

12.07.2007. Thus, the result in the said appeal would also

have a bearing on this case, apart from the factual aspects

involved in these petitions which require deeper

consideration. We therefore deem it proper to admit these

petitions for hearing by granting leave.

5. Delay condoned in SLP @ D.No.6578/21. Leave granted

in all the petitions.

6. Sri. S.S. Nagananda, learned senior counsel appearing

for the contesting respondents would however make out a

grievance that the petitioners taking benefit of the interim

extension of the limited interim order granted by the High

Court will continue to be in charge of the temple, to the

detriment of the devotees despite the High Court having

upheld the notification under Section 23 of Act, 1997 and the

order dated 12.08.2008 being quashed. Since we have

granted leave and the appeals will have to be heard in usual

course, merely allowing the status quo order made earlier

would work to the detriment of the contesting respondents

and other devotees despite having succeeded in the petition

before the High Court. At the same time, it would not be just

if the interim order is vacated in entirety and allow the

takeover of the temple in terms of the notification under

Section 23 of Act, 1997. The equities are to be balanced.

Hence in our opinion an appropriate interim arrangement to

protect the interest of all parties is to be made pending

consideration of the appeals on merit.

7. In that background Dr. Abhishek Manu Singhvi,

learned senior counsel appearing for the petitioner ‘Mutt’ and

Shri Ranjit Kumar, learned senior counsel appearing for the

State of Karnataka were heard, who have contended to assail

the judgment passed by the High Court, while Shri S.S.

Nagananda, learned senior counsel has sought to support the

view taken by the High Court. Similarly, we have heard other

learned counsel and perused the petition papers limited to

the extent of considering the interim arrangement.

8. The petitioners contended with regard to the history of

the ‘Mutt’ dating back to the 8th Century A.D. and being

established by Adi Shankaracharya who established the

‘Mutt’ at Gokarna and ordered his disciples to look after the

affairs of the ‘Mutt’ and the Gokarna Temple. However, a

trust was created to manage the temple only to meet the

requirement under the Bombay Public Trust Act, 1950 (‘BPT

Act’ for short). But it is contended that it has been

subsequently held that BPT Act is not applicable to

Karnataka. The present pontiff i.e., petitioner No.2 is stated

to be the 36th pontiff in an unbroken line. In that light the

right of the ‘Mutt’ over the temple is contended and reference

is made to Section 1(4) of Act, 1997 which makes the Act

inapplicable in respect of the temples belonging to the ‘Mutt’.

The contesting respondents however, dispute the position

and have referred to the consideration made by the High

Court to hold otherwise.

9. From the rival contentions what is relevant ultimately

is to consider whether the factual aspect relating to the

status of the temple i.e. whether it belongs to the ‘Mutt’ has

been established in accordance with the requirement under

law to establish the factual position. At the outset, it is to be

noted that the notification under Section 23 of the Act, 1997

is dated 30.04.2003/01.05.2003 and the position of the

temple being governed under the provisions of the Act was

accepted by the appellants for nearly five years until the

representation was made by the appellants as late as on

18.03.2008. Dr. Singhvi on referring to the said

representation has pointed to the proposal forwarded by the

Tehsildar, Kumta to the Assistant Commissioner and the

opinion of the Assistant Commissioner being considered by

the Deputy Commissioner, Commissioner and ultimately the

opinion of the learned Advocate General being taken note,

after which the Government Order dated 12.08.2008 was

passed by the Government of Karnataka. We do not find

anything to suggest that an enquiry was initiated under the

Act and parties were made aware that the Authorities were

enquiring into the question whether the temple belongs to the

Math or not. Such an enquiry would naturally have entailed

an opportunity to lead evidence.

10. The High Court though had taken note of the said

documents was ultimately of the view that the factual

determination relating to the status of the temple belonging

to the ‘Mutt’ or not was to be decided in a civil suit. It is also

contended that in another proceedings in Writ Appeal

No.5131/2008, through the order dated 15.12.2008 it was

held therein also that the jurisdiction of the civil court is to

be invoked to decide the disputed question of fact. The

learned senior counsel for the appellants would, however,

contend that Section 68 of Act, 1997 bars the jurisdiction of

the civil court and in that circumstance the conclusion

reached by the Commissioner based on the report submitted

by the Tehsildar, Assistant Commissioner and the Deputy

Commissioner should be held as conclusive on that aspect.

Though such contention is put forth, no documents to

establish the fact of the temple belonging to the ‘Mutt’ was

brought to our notice from the records nor was any such

document shown to have been relied upon by the Tehsildar or

the Commissioner in support of their recommendation. As

noted, on all these aspects the above appeals will require a

detailed consideration. One other aspect which is also

brought to our notice is a subsequent amendment introduced

in the year 2012 to Act, 1997 through Section 20A wherein

the disputed questions of the present nature has been left to

be decided by the ‘Rajya Dharmika Parishad’. Therefore, in

the instant facts the nature of consideration to be made will

arise at a later stage.

11. However, prima facie for the present, a perusal of the

consideration made from the initiation of the proceedings by

the Tehsildar on 20.02.2008 would indicate that the

determination of the status is not based on the evidence or

material relied upon in that regard. The Tehsildar, on the

other hand, has based the conclusion to recommend the

entrustment of the administration of the temple to the ‘Mutt’

in view of the overall improvement and also the opinion

expressed by the President of Gram Panchayat, Gokarna

which would not be sufficient to satisfy the requirement of

Section 1(4) of Act, 1997. The further consideration made by

the Assistant Commissioner, upto Commissioner and the

proceedings of the Government resulting in the order dated

12.08.2008 to delete the temple, prima facie indicates to be

an unilateral proceedings to which the contesting

respondents were not parties. In a matter where rival

contentions are being urged by the appellants and the

contesting respondents relating to the status of the temple,

appropriate determination/adjudication is required to be

made in accordance with law after providing opportunity to

both.

12. All the above aspects would require detail

consideration. The position remains that from the period of

the notification in the year 2003 the authorities under the Act

were in charge of the affairs of the temple till the impugned

order dated 12.08.2008 was passed. Subsequently since the

High Court has set aside the said order dated 12.08.2008, in

the usual course the inclusion of the temple in the

notification issued under Section 23 of Act, 1997 would revive

and the administration will have to be made as provided

under the Act. However, since a final decision is to be taken

in these appeals, it would not be appropriate to allow that

course. Instead, the appropriate course in the interest of the

temple as well as the devotees as also the ‘Mutt’ would be to

allow the administration of the temple by an independent

committee so that the temple is administered in an

appropriate manner for the benefit of all devotees until a final

determination is made.

13. To that extent, as already noticed the High Court while

quashing the Government Order dated 12.08.2008 and

holding that the temple shall continue to be included in the

list of notified institutions as per Section 23 of Act, 1997;

pending constitution of the Committee of Management for the

temple under the provisions of the Act had constituted an

“Overseeing Committee”. Presently since we are of the view

that a detailed consideration will be necessary herein and the

validity of the Act, 1997 is also pending in a collateral

proceeding, as an interim arrangement the said ‘Overseeing

Committee’ shall administer the temple pending

consideration of this appeal. There shall be a minor

modification in the composition of the committee formed by

the High Court.

14. In that view, in modification of all earlier interim orders

we direct that the ‘Overseeing Committee’ shall function

under the Chairmanship of Hon’ble Justice Sri. B.N.

Srikrishna, Former Judge, Supreme Court of India and

manage the affairs of the temple in all respects. The

Overseeing Committee shall consist of the following as

members;

(i) Deputy Commissioner, Uttara Kannada District

(ii) Superintendent of Police, Uttara Kannada District

(iii) Assistant Commissioner, Kumta SubDivision,

Kumta

(iv) Two eminent persons/scholars, capable of

discharging their functions as members of the

Committee, to be nominated by the State

Government;

(v) Two Upadivantas of Gokarna Temple to be

nominated by the Deputy Commissioner in

consultation with the State Government. The

committee shall oversee the functioning of the temple

by adhering to all traditions.

15. The two eminent persons and the two Upadivantas

indicated above to be members shall be nominated within 15

days from the date of this order and the committee shall take

over the management of the temple immediately thereafter,

which shall be subject to final orders to be made in these

appeals. The appellant ‘Mutt’ shall hand over charge of the

affairs of the temple to the Assistant Commissioner who shall

also act as Secretary to the ‘Overseeing Committee’.

16. Issue notice to respondents in SLP @ D.No.6578/21.

Pleadings be completed.

17. Ordered accordingly.

..…………....................CJI.

(S. A. Bobde)

…..…………....................J.

(A.S. Bopanna)

..…..………......................J

(V. Ramasubramanian)

New Delhi,

April 19, 2021

‘No Objection Certificate’ from the Ministry of Defence of the Government of India, for the conversion of the warship INS Viraat from scrap to preserve having been disposed of by the High Court of Bombay, without commenting upon the merits of the claim of the petitioners, but merely directing the Union of India to dispose of a pending representation of the petitioners, the writ petitioners before the High Court have come up with the above Special Leave Petitions.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NOs.288289 0F 2021

M/S ENVITECH MARINE CONSULTANTS PRIVATE

LIMITED AND OTHERS …PETITIONER (S)

VERSUS

UNION OF INDIA & ANR. ...RESPONDENT(S)

O R D E R

1. The writ petition filed by the petitioners, seeking a ‘No

Objection Certificate’ from the Ministry of Defence of the

Government of India, for the conversion of the warship INS Viraat

from scrap to preserve having been disposed of by the High Court of

Bombay, without commenting upon the merits of the claim of the

petitioners, but merely directing the Union of India to dispose of a

pending representation of the petitioners, the writ petitioners before

the High Court have come up with the above Special Leave

Petitions.

2. We have heard Mrs. Rupali Vishnukant Sharma, petitioner

No.3 appearing in person both on her own behalf and on behalf of

petitioner Nos.1 and 2, Shri Balbir Singh, learned Additional

Solicitor General for the Union of India and Shri Rajeev Dhavan,

learned senior counsel appearing for the second respondent.

3. INS Viraat, formerly known as HMS Hermes, is the oldest

serving warship in the world. It served the British Navy from

November, 1959 to April, 1984 and after refurbishment it was

commissioned into the Indian Navy in 1987.

4. On 1.07.2019 the Parliament was informed that the

Government had taken a decision, in consultation with the Navy to

scrap INS Viraat, as the Indian Navy had been incurring

expenditure on its upkeep and no State Government was willing to

take the ship, on account of financial liability. Therefore, the sale of

the decommissioned vessel through public auction was arranged

through a Metal Scrap Trade Corporation Limited (MSTC Ltd.)

5. In December, 2019, a public auction was held, but the same

was cancelled, as the highest bid was not deemed sufficient.

6. According to the petitioners, they wanted to preserve INS

Viraat as a memorial to promote and strengthen Indian and British

Navy traditions, history and heritage and they approached various

corporate houses to make the project a public private partnership.

7. It is the case of the petitioners that Blackstone Corporation,

Canada, issued a Letter of Interest dated 26.03.2020. Therefore,

petitioner No.3 addressed a letter dated 28.07.2020 seeking advice

on converting the warship into a Maritime Museum cum adventure

centre. Though the first respondent acknowledged receipt of the

representation of the petitioners and directed the petitioners to resubmit the proposal, subsequently the first respondent sought a

NOC from the Government of Goa. But by a reply dated

20.09.2020, the Chief Minister of Goa stated that the State

Government can issue no objection provided the Ministry of Defence

agreed to the proposal of the petitioners and no financial obligation

fell upon the State Government.

8. But in the meantime fresh tenders were opened and the

second respondent became the highest bidder. Therefore, a letter

of acceptance was issued on 13.08.2020 by MSTC Limited, to the

second respondent. The second respondent made a total payment

of about Rs. 38.54 crores, and the second respondent was issued

with a delivery Order dated 22.10.2020.

9. In the meantime the ship was permanently beached on

30.9.2020 and the petitioners appear to have approached the

second respondent. By a mail dated 6.10.2020 the second

respondent, without giving any guarantee, advised the petitioners to

take a NOC from the Government of India with a direction to the

associated departments of the Central and State Governments for

taking the ship out of the yard and converting it into a Museum. It

was made clear by the second respondent in the said mail dated

6.10.2020 that their agreement to the proposal was subject to two

more conditions namely (i) that 100% payment should be made

before 12th October, 2020 and (ii) that the deadline for pulling the

ship towards the ocean was 15th October, 2020.

10. Obviously the petitioners could not comply with those

conditions. However, they moved the High Court of Bombay by way

of a writ petition in Writ Petition No.5412 of 2020. This writ

petition was disposed of by the High Court of Bombay by an Order

dated 3.11.2020, directing the Union of India to take a decision on

the representation of the petitioners. It was clarified by the High

Court that they have not commented on the merits of the

petitioners’ claim nor had they recognized any right in favour of the

petitioners.

11. Not satisfied with the said order, the petitioners came up with

the above special leave petitions. Considering the spirit with which

the petitioners had come to Court, notice was ordered in the special

leave petitions and an interim order to maintain status quo with

regard to dismantling/breaking of the ship was also granted.

12. Thereafter, the second respondent came up with applications

for urgent hearing and vacating the status quo order and we took

up the Special Leave Petitions for consideration.

13. Three factual aspects clinch the issue arising for our

consideration. The first is that the second respondent was willing

to subscribe to the sentiments of the petitioners, subject to certain

conditions stipulated in the EMail dated 6.10.2020, but the

petitioners could not comply with those conditions. The second is

that subsequent to the disposal of the writ petition by Order dated

3.11.2020, the Ministry of Defence passed an Order dated

27.11.2020 rejecting the representation of the petitioners. This

order has not been challenged by petitioners. Obviously the

petitioners cannot do anything with the warship, without the NOC

from Ministry of Defence and the letter of the Ministry of Defence

dated 27.11.2020 has virtually put the lid on the aspirations of the

petitioners. Thirdly, the second respondent claims to have started

the dismantling/recycling work three months ago and according to

the certificate issued by the Marine Surveyors, about 35 to 40%

work of dismantling had already been completed. The certificate of

the surveyors shows that the vessel got severe hull damage in many

areas, during embarkation of loose parts and equipments. All

documents and certificates as well as the operational manuals have

been removed and the navigational items and communications

devices broken and removed. According to the surveyors, the vessel

is in ‘grounded condition’ and can be called a dead structure.

14. Therefore, while appreciating the sentiments of the petitioners,

we are afraid that we cannot do anything at this stage and in these

circumstances. Hence the Special Leave Petitions are dismissed.

There will be no order as to costs.

……………………………..CJI

(S.A. BOBDE)

……………………………….J.

(A.S. BOPANNA)

………………………………..J.

(V. RAMASUBRAMANIAN)

New Delhi

April 12, 2021

.JUSTICE V. ESWARAIAH (RETD.)= Authenticity and genuineness of the transcript having been admitted to the extent as contained in Annexure P-16, we are of the view that the direction by the High Court calling for report from Justice R.V. Raveendran need not be allowed to continue. We order accordingly.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.6100 OF 2021

(DIARY No.24744 of 2020)

JUSTICE V. ESWARAIAH (RETD.) ....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

This special leave petition has been filed by the

petitioner, a non-party, to the Writ Petition PIL

No.168 of 2020 questioning the order dated 13.08.2020

passed in the writ petition.

2. Application for permission to file special leave

petition is allowed.

3. We had not issued the notice in this special

leave petition, however, the respondent No.5, who was

writ petitioner before High Court had appeared and

filed a counter affidavit dated 13.01.2021.

4. The brief facts of the case necessary to decide

this special leave petition are:-

4.1 The respondent No.5, BC SC ST Minority

Student Federation, a registered society

under the provisions of Societies

Registration Act, 1860 has filed the Writ

Petition No.168 of 2020 as the Public

Interest Litigation praying for following

reliefs:-

(i) Direct the Respondent No.1 to

implement its guidelines in

true spirit in order to prevent

Covid-19 pandemic from

spreading further, by its own

machinery and State machinery

in coordination to function

effectively.

(ii) Direct the Respondent No.4 to

strictly follow the guidelines

issued by Respondent No.1 and

their own guidelines by

utilizing the State Machinery

effectively in order to prevent

Covid-19 pandemic from

spreading further

(iii) Direct the Respondent No.3 to

strictly follow the guidelines

issued by Respondent No.1, 4,

and the Honourable Apex Court

in order to prevent Covid-19

pandemic from spreading further

(iv) Direct the Respondent No.4 to

declare Respondent No.3

premises as a Red

Zone/containment Zone in order

to prevent Covid-19 from

spreading further

(v) Direct the Respondent No.1 and

2 herein to cause an enquiry to

be conducted by a central and

neutral agency to enquire into

the incidents leading to the

untimely death of Late B.

Rajasekhar, Registrar General

(In death of Late B.

Rajasekhar, Registrar General

(In-charge) of the Respondent

No.3 herein on 24/6/2020, the

death of an employee working as

Assistant in the V.R. Section

and about 30 more employees

being tested positive of Covid19

(vi) Direct the Respondent No.1 and

2 to consider imposing a strict

curfew for at least 2 weeks by

drafting para military forces

if need be and by providing

necessary mobile medical teams

and essential commodity

delivery teams in order to

prevent Covid-19 pandemic from

spreading further and in the

interest of all concerned.

4.2 The respondent No.3, the High Court of Andhra

Pradesh represented by the Registrar General

filed a preliminary counter affidavit dated

30.07.2020. In the preliminary counter

affidavit, the locus of the Society to file

the PIL was questioned. It was pleaded that

PIL is not a genuine PIL having substantial

public interest. In paragraph 13 of the

preliminary counter affidavit, it was pleaded

that petition has been filed by a political

person to political gain and to malign the

High Court. It was pleaded that former

Justice V. Eswaraiah (the petitioner in this

special leave petition) has also submitted a

complaint with the same allegations to the

President of India referred herein against

the Chief Justice. Further, it was pleaded

in paragraph 13 that after retirement Justice

V. Eswaraiah had obtained a post retirement

office and after achieving the said post

retirement office, he wants to support the

State Government under the cover of BC

association maligning the High Court. It was

pleaded in the preliminary counter affidavit

that filing of the petition is mala fide and

to achieve the oblique intention.

4.3 The High Court heard the preliminary

objection and closed the matter for judgment

on 31.07.2020. An I.A. No.7 of 2020 was

filed by one S. Ramakrishna alongwith his

affidavit stating that writ petition is

vexatious and has been instituted malafidely

and with vested interest. The affidavit

further pleaded that the incumbent Government

has unleashed a vicious propaganda against

the judiciary to cover up its shortcomings,

in which some of the retired judges like

Justice V. Eswaraiah had become pawns in the

hands of the Government and at their

instance, under the guise of some

organisations some vested interests have been

filing writ petitions to undermine the

honesty, integrity and majesty of the

judiciary.

4.4 A representation dated 29.06.2020 submitted

by Working President of All India Backward

Classes Federation of which Justice V.

Eswaraiah is President has also been referred

to in affidavit. In paragraph 8, it was

pleaded that Personal Secretary of Justice V.

Eswaraiah called him (Shri S. Ramakrishna) on

his mobile phone on 20.07.2020 and told him

that Retired Justice V. Eswaraiah wished to

speak to him and gave his phone number. It

was stated in the affidavit that during the

course of conversation, Retd. Justice V.

Eswaraiah asked him whether he was aware of

the letter submitted by All India Backward

Classes Federation dated 29.06.2020. The

transcript of the said conversation alongwith

audio recording was filed alongwith affidavit

for perusal of the Court. The applicant

prayed that Writ Petition PIL No.168 of 2000

be reopened and suitable orders be passed as

may deem fit and proper.

4.5 I.A. No.8 of 2020 was filed by Shri S.

Ramakrishna praying that applicant (Shri S.

Ramakrishna, petitioner) be permitted to

intervene in the Writ Petition PIL No.168 of

2020 in public interest.

4.6 I.A. No.9 of 2020 was filed by respondent

No.3 alongwith an affidavit of Registrar

General, High Court of Andhra Pradesh. By

I.A., respondent No.3 stated that during the

course of the proceedings, learned Advocate

General of the State of Andhra Pradesh has

raised objection regarding contents of

paragraph 13 of the preliminary counter

affidavit dated 30.07.2020, so as to avoid

unnecessary controversy, he may be permitted

to delete paragraph 13 of preliminary counter

affidavit dated 30.07.2020, which may be

substituted by paragraph 13 as was set out in

paragraph 4 of the affidavit. The application

for amendment of preliminary counter

affidavit dated 30.07.2020 was filed by

respondent No.3.

4.7 The writ petitioner filed a counter affidavit

to I.A. Nos. 7 and 8. The High Court by

impugned judgment dated 13.08.2020 passed an

order directing enquiry to find out the

authenticity/genuineness of the conversation

contained in the pen drive. The High Court

requested Justice R.V. Raveendran, a Retired

Judge of this Court to hold out an enquiry to

find out the genuineness/authenticity of the

conversation contained in the pen drive. The

High Court held:-

“..................Hence, we find

that it is a fit case to order

enquiry to find out the

authenticity/genuineness of the

conversation contained in the pendrive. Therefore, we request The

Hon'ble Sri. Justice R.V.

Raveendran retired Judge of the

Supreme Court of India to hold an

enquiry to find out the

authenticity/genuineness of the

conversation, contained in the

pen-drive..............”

4.8 The High Court in the same paragraph with

regard to enquiry which was directed, stated

following:-

“.......................The

enquiry is limited to find out the

authenticity/genuineness of the

conversation and third party

interest behind the plot. However,

this will not have any direct

bearing on the issue involved in

the main writ petition, except to

the extent of deciding the

allegation made in Paragraph No.

13 of the preliminary

counter/preliminary written

objections, but will be taken into

consideration in any other

incidental

proceedings.................”

4.9 The Registrar of the High Court was directed

to duplicate set of record and pen drive and

send one such copy to Justice R.V.

Raveendran. The request as contained in the

order of the High Court to Justice Raveendran

was to the following effect:-

“We request Hon'ble Sri. Justice

R.V. Raveendran, Retired Judge of

Supreme Court of India, to submit

a report to this Court on the

basis of the enquiry as to the

authenticity/genuineness of

conversation contained in pendrive, the persons who had

conversation and un-disclosed

interest of third party/parties.”

4.10 Aggrieved against the above direction of the

High Court directing for enquiry through

Justice R.V. Raveendran, Retired Judge,

Supreme Court, the petitioner, Retired Acting

Chief Justice of Andhra Pradesh High Court

has filed this writ petition.

5. This special leave petition was taken for

consideration on 11.01.2021. During submissions,

learned counsel for the petitioner Shri Prashant

Bhushan stated that the transcription of the talk

between the petitioner with Mr. Ramakrishna dated

20.07.2020 has been filed as Annexure P16 to the

paper book. He did not dispute the conversation and

prayed that the petitioner be permitted to file an

affidavit with regard to conversation dated

20.04.2020. Following order was passed by this Court

on 11.01.2021:-

“Mr. Prashant Bhushan, learned counsel

appearing for the petitioner submits that

the transcription of the talk between the

petitioner with Mr. Ramakrishna dated

20.07.2020 is filed as Annexure P16.

Learned counsel for the petitioner

does not dispute the conversation. He

prays that he be permitted to file an

affidavit of the petitioner with regard to

above conversation.

Let affidavit be filed.

List the matter on 18.01.2021.”

6. In pursuance of the order of this Court dated

11.01.2021, affidavit dated 14.01.2021 has been filed

by the petitioner Justice V. Eswaraiah (Retd.). In

the affidavit, it has been admitted that a suspended

District Munsif Magistrate of Andhra Pradesh, Mr. S.

Ramakrishna called him over the Whatsapp on

20.07.2020. He, however, stated that he cannot say

that if the conversation contained in the pen drive

is the exact conversation. Justice V. Eswaraiah in

paragraph 4C. of the affidavit disputed the English

transcription of the audio conversation as filed by

Mr. S. Ramakrishna before the High Court. However,

he submitted that he is providing a corrected

transcript of the talk contained in the pen drive as

Annexure P-16 at pages 134-154. Paragraph 4C of the

affidavit is as follows:-

“4c. ...................... I have

provided a corrected transcript of the

English translation of the audio tape

contained in the pen drive supplied to me,

in the SLP paper book as Annexure P16 at

pages 134-154. I reiterate, this is the

transcription of the audio version of the

conversation which Mr. Ramakrishna has

filed in the High Court..............”

7. We have heard learned counsel for the petitioner,

learned counsel appearing for respondent No.5, Shri

Tushar Mehta, learned Solicitor General has also

appeared on behalf of Union of India.

8. Two applications, i.e., I.A. Nos. 3926 of 2021

and 3927 of 2021 and I.A. No.1215 of 2021 have been

filed by intervenors praying to be permitted to

intervene in the matter.

9. In view of the order which is being proposed in

this special leave petition, we see no reason to

allow the intervention application Nos.3926 and 3927

of 2021 and I.A. No. 1215 of 2021. The intervention

applications, thus, are not entertained.

10. Learned counsel for the petitioner submits that

the High Court could not have entertained the I.A.

No.7 of 2020 and I.A. No.8 of 2020 at the instance of

Shri S. Ramakrishna, a suspended Munsif when the writ

petition was already closed on preliminary objection

on 31.07.2020. It is submitted that private

conversation between the petitioner and Shri

Ramakrishna could not have been made subject matter

of the writ petition. The subject matter of the writ

petition is entirely different from what is contained

in the said conversation. It is submitted that

Justice V. Eswaraiah was not given a notice by the

High Court and the order has been passed in violation

of principles of natural justice. It is submitted

that High Court could not have passed any order

directing for enquiry in the transcript dated

20.07.2020 without petitioner being given an

opportunity. Learned counsel submits that petitioner

since admits the transcripts, which has been filed as

Annexure P-16 pages 134-154 of the paper book, there

is no need to hold any enquiry by Justice R.V.

Raveendran, which has been requested by the High

Court to conduct the enquiry.

11. We have considered the submissions of the learned

counsel for the parties and have perused the records.

12. As noted above, the High Court has directed for

enquiry into the transcript to find out the

authenticity/genuineness of the conversation

contained in the pen drive. Justice R.V. Raveendran,

Retd. Judge of Supreme Court was requested to submit

a report to the High Court as to the

authenticity/genuineness of the conversation

contained in the pen drive. The object and purpose of

directing the enquiry was, thus, to find out the

authenticity/genuineness of the conversation

contained in the pen drive. This Court granting time

to the petitioner by order dated 11.01.2021,

petitioner having filed affidavit and admitted the

conversation dated 20.07.2020 and has also filed the

corrected transcript of the English translation of

the audio tape as Annexure P16, which is admitted to

him, we see no reason to allow to continue the

enquiry by Justice R.V. Raveendran as directed by the

High Court by the impugned judgment. Authenticity and

genuineness of the transcript having been admitted to

the extent as contained in Annexure P-16, we are of

the view that the direction by the High Court calling

for report from Justice R.V. Raveendran need not be

allowed to continue. We order accordingly.

13. The High Court in its judgment as extracted above

has clearly observed that the enquiry will not have

any direct bearing on the issue involved in the main

writ petition except to the extent of deciding the

allegations made in paragraph 13 of the preliminary

counter affidavit. High Court had closed hearing on

the preliminary objection regarding maintainability

of the PIL on 31.07.2020 and when I.A. Nos. 7 and 8

of 2020 were filed to reopen the writ petition, the

question before the High Court was only with regard

to maintainability of the writ petition.

14. We are of the view that the High Court ought not

to have embarked on any other enquiry in the matter

except to the maintainability of the PIL at the

instance of the writ petitioner and the conversation

dated 20.07.2020 filed before the High Court as well

as the enquiry report sought was only with the above

purpose.

15. Now, English translation of the transcript dated

20.07.2020 having been admitted by the writ

petitioner, which have been filed by petitioner

himself as Annexure P-16, we are of the view that in

event, the High Court intends to refer to the above

transcript, if required, the same can be done only

after giving an opportunity to the present

petitioner, Justice V. Eswaraiah.

16. We have not issued notice in the special leave

petition neither have entered into the merits of the

writ petition, nor expressing any opinion on the

maintainability of the Writ Petition PIL No.168 of

2020, it is for the High Court to proceed with the

writ petition and decide the same, including the

maintainability of the PIL, after hearing arguments

on which point the orders were reserved.

17. The special leave petition is disposed of

accordingly.

......................J.

( ASHOK BHUSHAN )

......................J.

( R. SUBHASH REDDY )

New Delhi,

April 12, 2021.

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