RAMESH BHAVAN RATHOD versus VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR. on 20 April 2021

[2021] 7 S.C.R. 17

RAMESH BHAVAN RATHOD

v.

VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR.

(Criminal Appeal No 422 of 2021)

APRIL 20, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Code of Criminal Procedure, 1973:

s. 439 – Special powers of High Court or Court of Sessionregarding bail – On facts, six persons implicated in five homicidaldeaths – Grant of bail by High Court – Correctness of – Held: Nature ofthe offence, its gravity is a circumstance which has an important bearingon the grant of bail – On facts, while granting bail to the six accused,the High Court committed serious mistake by failing to recognize materialaspects of the case, rendering the orders of the High Court vulnerable toassail on the ground of perversity – High Court failed to look into theseriousness and gravity of the offences – FIR lodged adverts to themurder of five persons on the side of the informant in the course of theincident as a result of which offences punishable under Penal Code,Arms Act and Gujarat Police Act, were alleged – FIR specifically refersto the presence of the accused persons and that they had all come to thescene of offence with weapons – Plain reading of the cross FIR indicatesboth the presence of the accused and the execution of their plan toassault the side of the informant with the weapons in their possession –High Court overlooked the cross FIR and the implications of its content– Thus, the order granting bail to accused persons having failed to passmuster under the law, set aside.

s. 439 – Bail – Grant of – Application of principle of parity –Held: 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 utmostimportance – Merely observing that another accused who was grantedbail was armed with a similar weapon is not sufficient, but individualrole attributed to each accused must be considered.

s. 439 – Grant of bail under – Recording of reasons – Held:Grant of bail u/s. 439 is a matter involving the exercise of judicial

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Adiscretion – Judicial discretion in granting or refusing bail is notunstructured – Duty to record reasons is a significant safeguard whichensures that the discretion which is entrusted to the court is exercised ina judicious manner – Recording of reasons in a judicial order ensuresthat the thought process underlying the order is subject to scrutiny andthat it meets objective standards of reason and justice.B

s. 439 – Bail – Grant of, by High Court – Order passed by theJudge observing that the order granting bail to the concerned accusednot be treated as a precedent to claim bail on the basis of parity in anyother case – Correctness of – Held: Said observation is inappropriateand erroneous – Whether parity can be claimed by any other accused onCthe basis of the order granting bail to concerned accused ought not tohave been pre-judged by the Single Judge who was dealing only withthe application for the grant of bail to the accused concerned – Whetheran order granting bail is a precedent on grounds of parity is a matterfor future adjudication if and when bail application is moved on theDgrounds of parity on behalf of the accused.

s. 439 – Bail – Grant of, by High Court – Observations of theHigh Court in succession of orders that the counsel for the parties “donot press for a further reasoned order” – Correctness of – Held:Observations of the High Court is disapproved – Consent of partiesEcannot obviate the duty of the High Court to apply a judicial mind andindicate its reasons why it has either granted or refused bail – Outcomeof the application has a significant bearing on the liberty of the accusedon one hand as well as the public interest in the due enforcement ofcriminal justice on the other.

FAllowing the appeals, the Court

Conclusion

FAllowing the appeals, the Court

HELD: 1.1 The first aspect of the case which stares in theface is the singular absence in the judgment of the High Court tothe nature and gravity of the crime. The incident which took placeon 9 May 2020 resulted in five homicidal deaths. The nature ofGthe offence is a circumstance which has an important bearing onthe grant of bail. The orders of the High Court are conspicuous inthe absence of any awareness or elaboration of the serious natureof the offence. The perversity lies in the failure of the High Courtto consider an important circumstance which has a bearing on H

whether bail should be granted. The orders passed by the HighCourt granting bail fail to pass muster under the law. They areoblivious to, and innocent of, the nature and gravity of the allegedoffences and to the severity of the punishment in the event ofconviction. [Paras 20, 22][36-F-H; 37-A; 38-G-H; 39-A]

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

SCR 1165 – referred to

1.2 The High Court by its two orders granted bail to A-10and A-15. Parity was sought with A-13 to whom bail was grantedon the ground (as the High Court recorded) that he was “assignedsimilar role of armed with stick (sic)”. Again, bail was granted toA-16 on the ground that he was armed with a wooden stick and onthe ground that A-10, A-15 and A-13 who were armed with stickshad been granted bail. The High Court evidently misunderstoodthe central aspect of what is meant by parity. Parity while grantingbail must focus upon role of the accused. Merely observing thatanother accused who was granted bail was armed with a similarweapon is not sufficient to determine whether a case for the grantof bail on the basis of parity has been established. In deciding theaspect of parity, the role attached to the accused, their positionin relation to the incident and to the victims is of utmostimportance. The High Court proceeded on the basis of parity ona simplistic assessment, which cannot pass muster under the law.[Para 23][39-D-H]

Neeru Yadav v. State of U.P. (2014) 16 SCC 508: [2014]12 SCR 453 – referred to 1.3 It is evident that essentially the only order which containsa semblance of reasoning is the order dated 22 October 2020 grantingbail to A-13. As a matter of fact, the submissions which have beenmade on behalf of the accused substantially dwell on the same lineof logic in justifying the grant of bail on the ground that in thesubsequent statement dated 3 June 2020 of the informant, the genesisand details of the incident which took place on 9 May 2020 aselaborated in the FIR have undergone a substantial change. [Para26][40-G-H]

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A1.4 In granting bail to the six accused, the High Courtcommitted a serious mistake by failing to recognize materialaspects of the case, rendering the orders of the High Courtvulnerable to assail on the ground of perversity. The firstcircumstance which should have weighed with the High Courtbut which has been glossed over is the seriousness and gravity ofBthe offences. The FIR which has been lodged on 9 May 2020adverts to the murder of five persons on the side of the informantin the course of the incident as a result of which offencespunishable under Sections 302, 143, 144, 147, 148, 149, 341, 384,120B, 506(2) r/w Section 34 of the Penal Code were alleged. ThisCis 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 PoliceAct. The FIR specifically refers to the presence of the accusedA-6, A-13, A-16, A-15, A-10 and A-17. It states that the accusedhad all come to the scene of offence with pistols, dhariyas andknives. A-6 and two others had fired from their rifles. Some ofDthese accused-A-6, A-13, A-16, A- 15, A-10 and A-17 are allegedto have assaulted with dhariyas and lathis over the head and bodyof victims. All of them were rushed to the Government Hospitalwhere they were pronounced dead. [Para 27][41-A-C; D-F]

1.5 Four days after the FIR was lodged by the informant onE9 May 2020, a cross FIR was lodged by A-6. This FIR contains anarration of the pre-existing dispute over land and to an incidentwhich had taken place on 7 May 2020. A reading of the cross FIRindicates that an intent on the part of the accused to launch anassault on the deceased; the manner in which their pre-meditatedFdesign was sought to be achieved by assaulting the deceased persons.With the contents of the cross FIR as they stand, it was impossiblefor any judicial mind, while adjudicating upon the applications forthe grant of bail, to gloss over the presence of the accused at thescene of occurrence, the accused being armed with weapons andtheir intent to assault them; and the actual incident, resulting in fiveGhomicidal deaths. [Paras 28-30][41-F-G; 42-C-D; E-G]

1.6 The Post Mortem reports which have been producedon the record indicate the extensive nature of the bodily injurieswhich were sustained by each of the five deceased persons. It istrue that in the FIR it was alleged that the deceased were firedHupon as a result of which they fell to the ground whereas, in the subsequent statement, it has been stated that the injuries weresustained as a result of dhariyas and sticks. Whether the deathsoccurred as a result of bullet wounds or otherwise can make nodifference on whether a case for the grant of bail was made outonce a plain reading of the cross FIR indicates both the presenceof the accused and the execution of their plan to assault the sideof the informant with the weapons which were in the possessionof the accused. The High Court in its first order was persuadedto grant bail on the specious ground that the details of the incidentas they appeared in the subsequent statement of the informantare at variance with the FIR. These are matters of trial. The HighCourt has, however, clearly overlooked the cross FIR and theimplications of the content of the FIR on the basic issue as towhether bail should be granted. It is also important to note that thepresence of women on the side of the accused is a fact which is notedin the cross FIR itself. [Para 31][42-G-H; 43-A-D]

1.7 There has been a manifest failure of the High Court toadvert to material circumstances, especially the narration of theincident as it appears in the cross FIR. Above all, the High Courthas completely ignored the gravity and seriousness of the offencewhich resulted in five homicidal deaths. This is clearly a case wherethe orders passed by the High Court suffered from a clear perversity.[Para 32][43-E-F]

1.8 In the order of the High Court granting bail to A-13,there was a reference to the submission of the Public Prosecutorto the criminal antecedents of A-13 bearing on previous FIRsregistered against him in 2017 and 2019. This aspect bearing onthe criminal antecedents of A-13 was not considered in the reasonswhich have been adduced by the Single Judge. That apart, theground on which A-13 was granted bail is that in the subsequentstatement dated 3 June 2020, the overt act which was attributedin the FIR was found to be missing. Having said this, the Judgeobserved that the order shall not be treated as a precedent toclaim bail on the basis of parity in any other case. The saidobservation of the Single Judge is disapproved. Whether paritycan be claimed by any other accused on the basis of the ordergranting bail to A-13 ought not to have been pre-judged by theSingle Judge who was dealing only with the application for thegrant of bail to A-13. The observation that the grant of bail to AB

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AA-13 shall not be considered as a precedent for any other personwho is accused in the FIR on grounds of parity does not constitutejudicially appropriate reasoning. Whether an order granting a bailis a precedent on grounds of parity is a matter for futureadjudication if and when an application for bail is moved on thegrounds of parity on behalf of another accused. In the event thatBparity is claimed in such a case thereafter, it is for that court beforewhom parity is claimed to determine whether a case for the grantof bail on reasons of parity is made out. In other words, theobservations of the Single Judge are inappropriate and erroneous.Bail was thereafter granted to A-10 and A-15 on the ground ofCparity as claimed with the order granting bail to A-13. The SingleJudge observed that the Additional Public Prosecutor had notmade any point of distinction. Subsequently, parity was the basison which bail was sought in the case of A-16. While granting bailthe Single Judge observed that parties did not press for furtherreasoned orders. A similar observation is contained in the orderDof the Single Judge granting bail to A-17. The order of the HighCourt granting bail to A-6 again contains the same statement.The observations of the High Court in a succession of orders inthe present case recording that the Counsel for the parties“do not press for a further reasoned order”, is disapproved.E[Paras 33-34][43-F-G, H; 4-A-D, E-H; 45-A]

Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC 446:[2012] 7 SCR 584 – referred to 1.9 The grant of bail is a matter which implicates the libertyof the accused, the interest of the State and the victims of crimeFin the proper administration of criminal justice. It is a well-settledprinciple that in determining as to whether bail should be granted,the High Court, or for that matter, the Sessions Court decidingan application under Section 439 of the CrPC would not launchupon a detailed evaluation of the facts on merits since a criminalGtrial is still to take place. These observations while adjudicatingupon bail would also not be binding on the outcome of the trial.But the Court granting bail cannot obviate its duty to apply ajudicial mind and to record reasons, brief as they may be, for thepurpose of deciding whether or not to grant bail. The consent ofparties cannot obviate the duty of the High Court to indicate itsH

reasons why it has either granted or refused bail. This is for thereason that the outcome of the application has a significant bearingon the liberty of the accused on one hand as well as the publicinterest 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 individualparties, as in a civil proceeding. The proper enforcement ofcriminal law is a matter of public interest. Thus, the manner inwhich a succession of orders in the present batch of cases hasrecorded that counsel for the “respective parties do not pressfor further reasoned order” are disapproved. If this is aeuphemism for not recording adequate reasons, this kind of aformula cannot shield the order from judicial scrutiny. [Para 35][45-A-F]

1.10 Grant of bail under Section 439 of the CrPC is a matterinvolving the exercise of judicial discretion. Judicial discretion ingranting or refusing bail as in the case of any other discretion whichis vested in a court as a judicial institution is not unstructured. Theduty to record reasons is a significant safeguard which ensures thatthe discretion which is entrusted to the court is exercised in a judiciousmanner. The recording of reasons in a judicial order ensures that thethought process underlying the order is subject to scrutiny and thatit meets objective standards of reason and justice. [Para 36][45-F-G]

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

3 Suppl. SCR 584 – referred to

1.11 As regards the application for bail of A-6, the HighCourt sought to support its decision to grant bail by stating that ithad perused the material on record and was granting bail “withoutdiscussing the evidence in detail” taking into consideration the factsof the case; the nature of allegations; gravity of offences; and therole attributed to the accused. As a matter of fact there was nodiscussion or analysis of circumstances at all. This lone sentence inthe order of the Single Judge leaves a Court before which the ordergranting bail is challenged, completely without guidance on theconsiderations which weighed with the High Court in grantingbail. In deciding whether or not to grant bail the High Court isnot at a stage where it adjudicates upon guilt. This is to be analyzed AB

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Aduring the course of criminal trial where evidence has beenrecorded. But surely, the order of the High Court must indicatesome reasons why the Court has either granted or denied bail.The Sessions Judges in the instant case have indicated theirreasons for the ultimate conclusion. This unfortunately was notobserved in the order of the High Court. There is no questionBnow of ordering a remand to the High Court in the case of A-6since the question of bail has been argued fully before this Court.Moreover, the case of A-6 has been considered together with theentire batch of cases in which bail has been granted initially in thecase of A-13, which has been followed on the grounds of parity inCthe case of the other accused. [Paras 37-38][46-C-H; 47-G-H;48-A-B]Sonu v. Sonu Yadav Crl Appeal No. 377 of 2021,decided on 5.4. 2021 – relied on.

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

Sanjay Chandra v. Central Bureau of Investigation 2012(1) SCC 40; Mahipal v. Rajesh Kumar Alias Polia (2020)E2 SCC 118; Prabhakar Tewari v. State of U.P. [2020] 11SCC 648; Ram Govind Upadhyay v. Sudarshan Singh(2002) 3 SCC 598:[2002] 2 SCR 526; Prasanta KumarSarkar v. Ashis Chatterjee (2010) 14 SCC 496: [2010] 12 SCR 1165; The State of Kerala v. Mahesh Criminal AppealFNo 343 of 2021 decided on 19.03.2021 – referred to H

RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANAMAKWANA (KOLI)

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 422 of 2021

From the Judgment and Order dated 21.12.2020 of the High Courtof Gujarat at Ahmedabad in R/Criminal Misc. Application No. 19382 of2020.

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With

Criminal Appeal Nos. 423, 426, 424-425 And 427 of 2021

J.S. Attri, Sr., Adv., Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna,Vinay Mathew, Aniruddha P Mayee, Haresh Raichura, Ms. SarojRaichura, Kalp Raichura, Ram Bhadauria, Purvish Jitendra Malkan, Ms.Dharita Purvish Malkan, Jitendra M. Malkan, Ms. Deepa Gorasia, AlokKumar, Ms. Neha Ambashtha, Ms. Nandini Chhabra, Ms. Bhavna Sarkar,Advs. for the Respondents.

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The Judgment of the Court was delivered by E

DR. DHANANJAYA Y CHANDRACHUD, J.

1. This batch of five appeals arises from orders of the High Courtof Gujarat granting bail, under Section 439 of the Code of CriminalProcedure 1973[1], to six persons who have been implicated in five homicidaldeaths.

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2. A First Information Report (“FIR”) being CR No11993005200314 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 IndianPenal Code, Sections 25(1-b) A, 27 and 29 of the Arms Act and Section135 of the Gujarat Police Act. The appellant - Ramesh Bhavan Rathod -is the informant on whose statement, the FIR was registered at 1930hours in respect of an incident which took place at 1300 hours. Theincident took place in village Hamirpur which is at a distance of 20 kmsfrom the police station. The incident which led to the commission of five G

1 “CrPC”

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Amurders had its genesis in a land dispute. The informant alleged that heand his brother Pethabhai had gone to their farm at 6:00 am. At 1 pm, theinformant, Pethabhai and his brother-in-law Akhabhai were returninghome in a Scorpio vehicle with five other persons. When the vehiclereached the untarred road passing through the farm of Lakha Hira Koliand Kanji Bijal Koli, these two persons came out along with Lakha HiraBKoli. Lakha Koli dashed his tractor on the front portion of the Scorpiovehicle. Kanji Koli parked his tractor on the rear side of the Scorpio,behind which another Sumo vehicle came to be stationed. The Scorpioand its occupants were waylaid. As the informant and others attemptedto run away from the scene, he saw the homicidal incident which heCdescribes in the following terms:

“..At that time I saw that Dhama Ghela Koli, Devendrsinh aliasLalubha Ghelubha Vaghela, Vishan Hira Koli, Bharat Mamu Koli,Dilip Mamu Koli, Ramshi Hira Koli, Pravin Hira Koli, BhaghubhaHasubha Vaghela, Mohansang Umedasng Vaghela and Vanraj KarsanDKoli and Dinesh Karsan Koli all come with weapons Pistol, Dhariya,Knife from the thorny fence nearby, in which Dhama Gela Koliand Devendrasinh alias Lalubha Gelubha Vaghela and Visan HiraKoli and Bharat Mamu Koli had fired rounds from Rifles in theirhand targeting Akhabhai and others at that time. AkhabhaiJeshangbhai Umat my Brother Pethabhai Bhavanbhai Rathod andEAmara Jeshang Umat and Lalji Akhabhai Umat and Vela PanchabhaiUmat injured due to firing and laying on land and that time LakhaHira Koli’s Wife, Kanji Bijal Koli’s Wife Lakhman Bijal Koli’sWife and Dhama Ghela Koli’s Wife and Vishan Hira Koli’s Wifealso come there, their name is I do not know, and Visan Hira KofiFtalk with Akhabhai that why you are cultivating my father andgrand father’s land that is our land we also said before that thisland you do not cultivate so today your life is over. This was saidby Visan Hira Koli and thereafter Dilip Mamu Koli, Ramshi HiraKofi, Bhaghubha Hasubha Vaghela Mohansang Umedsang Vaghelaand Prabhu Ghela Koli, with Dhariya in their hands and in theGhands Pravin Hira Koli, Siddhrajsinh Bhaghubha Vaghela, KhetaParbat Koli, Vanraj Karsan Koli, and Dinesh Karsan Kofi withLathi (Wooden Stick) and all together assaulted blindly with Dhariya& Lathi over the head and body of Akhabhai Jeshangbhai Umatand my brother Pethabhai Bhavanbhai Rathod and Amara JeshangHUmat and Lalji Akhabhai Umat and Vela Panchabhai Umat and those people when assaulted that time all five are shouting “savesave” but those people are in large gathering so I cannot go nearso I cannot save those five those because they will kill me so I ranaway from and I go to my Village…”

3. The incident resulted in the death of five persons. Among thetwenty-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 allegedto have been conducted at the scene of offence on the next day, i.e. on 10May 2020, resulting in the recovery of, inter alia, two country madeguns, two indigenous counterfeit guns, four dhariyas and one woodenstick.

4. On 13 May 2020, a cross FIR was registered at the behest ofVishan Heera Makwana (Koli) being FIR No 11993005200315 at PoliceStation Aadesar. The informant in the cross FIR claims to be an originalresident of village Hamirpar and is presently residing at Village Anjar. TheFIR states that after the lockdown had been declared on 25 March 2020,the informant had left Anjar to go to village Hamirpar. About fifteen yearsago certain agricultural land had been sold to another person, whosubsequently gave it for cultivation to Akhabhai. Akhabhai was refusingto give the fields for cultivation to the informant as a result of which aquarrel had taken place on 7 May 2020. The informant’s motor cycle hadbeen taken away by the police. The issue had been settled at the interventionof persons belonging to the community and no complaint was filed.According to the cross FIR on 9 May 2020, the informant Vishan sent hisnephew to the Police Station together with Akhabhai to retrieve the motorcycle. The cross FIR narrates Vishan’s version of the incident which tookplace on 9 May 2020 in the following terms:

“..We have decide to kill Akhabhai hence I myself along with myBrother Lakhbhai Hira Koli, Dinesh Karshan Koli, and LalubhaGhelubha Vaghela sat in Ritz Car and proceeded towards Bhimasarat the time I was driving the said Car and I tried to dash the saidCar with Akhabhai and tried to kill him. But Akhabhai ran awaynearby and we came to our field (Wadi) There after around 12’0Clock noon Akhabhai ring me on my mobile phone and said thatwhy you have tried to dashed by car of Lalubha. I have givenfalse reply that I am sitting on my field (Wadi) I am not involved.

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AAkhabhai told me we are coming to you field (Wadi) for quarrelbe ready for quarrel at that time I myself along with my brotherLakha Hira Koli, Ramsi Koli, Pravin, Dhama Gela Koli,Devendrasinh , Iliyas Lalubha Vaghela, Bharat Mamu Koli, DilipMamu Koli, Bhagubha Hansubha Vaghela, and his son MonsangUmedsang Vaghela, Prabhu Gela Koli, Kheta Parbar Koli, VanrajBKarshan Koli, Dinesh Darshan Koli were present their I have toldthis fact to them that Jeseng Umat along with his men are comingat our wadi for quarreling with us so we all armed with weaponswe came near by our field’s boundary and we all are becomeready for quarrel and sat nearby Lakhman Bijal’s field and thatCtime white color jeep came that at about place near about wadiRamesh Bhavan Rathod come down for jeep along with dhariyain his hand, Akhabhai came down with his gun, Akhabhai abusedme “I have pride to save” at that time Ramesh Bhavan Rathodgiven blow with dhariya I have tried to save myself and I havelifted up my left hand so dhariya blow caused injury in my leftDhand I have fallen down on earth and blood coming out for my lefthand at the time Akhabhai given blow of gun on my brother namelyRamsi on his hand- at that time Akha son Lalji - Amra JesengUmat - Vela Pancha Umat - Petha Bhavan Rathod - Akhabhai’syounger son Dharmendra - Papu Gabha Umat, came down fromEjeep and tried to attack on me at that time my brother PravinDhama Gela Koli, Devendrasinh, Iliyas Lalubha Vaghela, BharatMamu Koli, Dilip Mamu Koli, Bhagubha Hansubha Vaghela, andhis son Mohansang Umedsang Vaghela, Prabhu Gela Koli, KhetaParbat Koli, Vanraj Karsan Koli, Dinesh Karsan Koli, came alongwith the arms at that time Akho and his person’s tried to ran awayFwith the Scorpio jeep. My brother namely Lakhabhai dashed thatjeep by tractor at that time my another cousin brother Kanji Bijalcame with the another tractor and Lakhman Bijal came with thesumo jeep and dashed with the jeep of Akhabhai. At that time ourladies came down during quarrel Ramesh Bhavan Rathod- PapuGabha Umat - Akhabhai Son Dharmendra ran away at that timeGthe our persons who came there assaulted with the dhariya andlakdi’s on Akhabhai- Velabhai-Pethabhai-Amrabhai And Lalji andthis quarrel i have been injured…”

5. Vishan was arrested on 18 May 2020. A further statement ofthe informant in the original FIR dated 9 May 2020 was recorded on 3HJune 2020. After investigation, the charge-sheet was submitted by the investigating officer against Vishan and twenty-two co-accused. On 31August 2020, an application for interim bail moved by Vishan on medicalgrounds was rejected by the Sessions Judge, Bhachau, Kachchh takingnote of the fact that the accused had produced fake documents for thepurpose of obtaining bail. An application seeking regular bail under Section439 of the CrPC was rejected by the Additional Sessions Judge, Bhachauon 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 weremoved before the High Court on behalf of the six persons namely:

Vishan Heera Koli-Accused no.6Pravin Heera Koli-Accused no.10Sidhdhrajsinh Bhagubha Vaghela-Accused no.13Kheta Parbat Koli-Accused no.15Vanraj Karshan Koli-Accused no.16Dinesh Karshan Akhiyani (Koli)-Accused no.17

7. The orders passed by the High Court granting bail to the abovepersons are tabulated below:

At this stage, it is necessary to note that A-10 and A-15 were bothgranted bail on 21 December 2020 on the basis of parity claimed on thebasis of the order dated 22 October 2020 granting bail to A-13. Theorders dated 19 January 2021 granting bail to A-16 and to A-17 on 20January 2021 are also based on parity.

8. Chronologically, the first order of the High Court granting bailwas to Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020.

The High Court observed thus:

Sl No. Name of the accusedAccused No. Date of order 1Vishan Heera Koli 621 December 20202Pravin Heera Koli 1021 December 20203Sidhdhrajsinh Bhagubha Vaghela1322 October 20204Kheta Parbat Koli1521 December 20205Vanraj Karshan Koli1619 January 20216 Dinesh Karshan Akhiyani (Koli) 17 20 January 2021

“14. Having considered the rival submissions and having gonethrough the materials on record, it appears that though the name ofthe applicant and is shown in the FIR for the alleged offencespunishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, A

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SUPREME COURT REPORTS

A120B, 506 and 34 of the I.P.C., offence punishable under Section25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the GujaratPolice Act, for the incident which took place on 9th May 2020, onperusal of the charge-sheet papers, it appears that the complainantin the subsequent statement dated 3[rd] June 2020, which has beenrecorded after 25 days from the date of incident, the overt tactBwhich was attributed in the FIR, is missing. Though the complainanthas stated that the applicant was present, but no role is attributedin the subsequent statement, which was recorded on 3rd June,2020, wherein the details with regard to chronology of events whichtook place at the place of the incident on 9th May 2020 is in effectCsubstituted by the complainant in the additional statement dated3[rd] June 2020 by narrating altogether different details. At thisjuncture, this Court is not going into the details of the incident as itmay affect the trial at the later point of time. Suffice is to sayprima facie appears that the applicant has been involved in allegedoffences due to pending proceedings of the previous offences andDenmity 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 E(iii)The trial was likely to take time as 110 witnesses were to beexamined.

Reliance was placed on the decision of this Court in SanjayChandra v. Central Bureau of Investigation[2]. The orders granting bailto A-10 and A-15 (21 December 2020); to A-16 (19 January 2021); andFto A-17 (20 January 2021) are based on parity.

10. The main accused, Vishan (A-6) was granted bail on 21December 2020. The reasons adduced by the Single Judge of the HighCourt are contained in paragraphs 7, 8 and 9 of the order which readsthus:G

“7. Having heard the learned advocates for the parties and perusingthe material placed on record and taking into consideration thefacts of the case, nature of allegations, gravity of offences, roleattributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise thediscretion and enlarge the applicant on regular bail.

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8. Looking to the overall facts and circumstances of the presentcase, I am inclined to consider the case of the applicant.

9. This Court has also taken into consideration the law laid downby the Hon’ble Apex Court in the case of Sanjay Chandra Vs.Central Bureau of Investigation, reported in [2012] 1 SCC 40.”

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11. The allegations against all the accused in the present batch ofappeals arise out of the same incident. All the appeals have hence beenheard together.

12. Mr Vinay Navare, Senior Counsel and Ms Jaikriti S Jadeja,Counsel have appeared in support of the appeals, all of which had beenfiled by the informant. Mr Nikhil Goel, Counsel appeared on behalf ofthe respondent-accused. In pursuance of the notice issued on 5 February2021, Mr Aniruddha P Mayee has entered appearance on behalf of theState of Gujarat. Insofar as the accused are concerned, the position beforethe Court as recorded in the order dated 5 April 2021 reads thus:

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-“SLP (Crl) 790/2021sole accused represented by MrNikhil Goel-SLP (Crl) 1245/2021sole accused – no appearanceentered despite serviceE-SLP (Crl) 1246-47/2021two accused represented by MrPurvish Malkan and Mr Nikhil Goel-SLP (Crl) 1248/2021sole accused – no appearance entereddespite service-SLP (Crl) 1249/2021sole accused represented by Mr J SFAtri, instructed by Mr HareshRaichura”

Since in two of the Special Leave Petitions namely Special LeavePetition (Crl) Nos. 1245 and 1248 of 2021, no appearance had beenentered on behalf of the accused despite service of notice, this Court byits order dated 5 April 2021 requested Mr Nikhil Goel to represent them.We appreciate the able assistance which has been rendered by Mr NikhilGoel as an officer of the Court who has acted as an amicus curiae forthe two unrepresented accused as well.

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13. Mr Vinay Navare, learned Senior Counsel appearing on behalfof the appellant – informant submits that the primary basis on which the H

Afirst order granting bail was passed by the High Court in the case ofSidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020 is that whilethe FIR was registered on 9 May 2020, the statement of the informantwas recorded on 3 June 2020, in which there have been substantial changesin the genesis of the incident including the nature of the weapons. Whilethe allegation in the FIR is that Vishan (A-6) fired several rounds from aBrifle together with other persons, the subsequent statement would indicatethat the injuries had been caused not as a result of the use of firearms butby a sharp weapon. The following submissions have been urged:

(i) The cross FIR lodged by Vishan (A-6) on 13 May 2020indicates that an incident had taken place on 9 May 2020; C

(ii) During the course of the incident, five homicidal deathsresulted on the side of the informant (of the FIR dated 9 May2020);

(iii) The cross FIR lodged on 13 May 2020 contains a referenceto:

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a.The accused being armed with weapons;

b.Pre-meditation on the part of the accused to waylayand assault the side of the informant; and

c.The assault being committed by the accused as thedeceased were attempting to flee after their vehicle hadEbeen cornered by two tractors belonging to the side ofthe accused.

(iv) The presence of the accused and the role attracted to themhas been spelt out not only in the FIR but it is evident fromthe cross FIR which was subsequently registered on 13 MayF2020 at the behest of Vishan (A-6);

(v) The cross FIR which sets out the version of the accusedwould indicate that the accused were the aggressors; and

(vi) Whether the five deaths were caused as a result of firearmGinjuries (as alleged in the FIR dated 9 May 2020) or due todhariyas (as alleged in the statement recorded on 3 June 2020)is not relevant at this stage. The presence of the accused, thepre-meditation on their part, the assault committed on personsbelonging to the side of the informant and the resultant fivehomicidal deaths which form the genesis of the incident shouldHbe sufficient to deny bail.

14. On the above premises, it has been urged that the High Courthas committed a grievous error in granting bail in the first instance on 22October 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 anyreasons whatsoever. It was urged that while granting bail, the Chief Justicehas merely observed that the Advocates who appeared on behalf of therespective parties “do not press for further reasoned order”. This, it wasurged, is an anathema to criminal jurisprudence. The High Court whileexercising its jurisdiction under Section 439, is required to apply its mindobjectively and indicate reasons for the grant of bail. This duty cannot beobviated, it was urged, by recording that the Counsel for the parties didnot press for “a further reasoned order”.

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15. The submissions urged by Mr Vinay Navare, Senior Counselhave been supported during the course of her submissions by Ms JaikritiS Jadeja. Learned counsel, in addition, adverted to the followingcircumstances:

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(i) The registration of three prior FIRs against SidhdhrajsinhBhagubha Vaghela (A-13);

(ii) The observation of the High Court while granting bail that theorder would not be treated as precedent in any other case onEgrounds of parity; and

(iii) The grant of bail on the basis of parity alone to Vanraj KarshanKoli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli(A-10) and Dinesh Karshan Akhiyani (Koli) (A-17).

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16. Mr Aniruddha P Mayee, learned Counsel appearing on behalfof the State of Gujarat has supported the submissions of the appellant inthe challenge to the orders granting bail on the following grounds:

(i) The grant of bail by the High court to the six accused personsin this batch is not justified having regard to the followingcircumstances:

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a.The main accused Vishan (A-6) was a resident of Anjarand had come to Hamirpur; b.There was an earlier incident which had taken placeinvolving an altercation with the deceased Akhabhai; H

Ac.A compromise was arrived at in the course of the disputewith the intervention of the community;

d. As the cross FIR by Vishan (A-6) narrates, on 9 May2020- the conduct of the accused was pre-meditated; e.The incident took place at 1:00 pm when the side of theBinformant (in the FIR dated 9 May 2020) was returningfrom their fields for lunch when they were waylaid andobstructed by vehicles of the accused both at the frontand the rear; f.The side of the accused had collected 22 persons forCexecuting a pre-meditated design to assault the group ofthe informant with deadly weapons; g.Whether or not the rifles had been fired, the panchnamanotes the recovery of the weapons;

h. Both Vishan (A-6) and Sidhdhrajsinh Bhagubha VaghelaD(A-13) have criminal antecedents, there being earlier FIRsregistered against them;

i.The Sessions Judge noted that A-6 had even attemptedto obtain bail on medical grounds on the basis of a falseidentity; and E

j.The complicity of the accused, their intent, presence androle are amply supported by the cross FIR.

17. Mr Nikhil Goel, learned Counsel appearing on behalf of theaccused has on the other hand supported the orders of the High Courtgranting bail on the following submissions:F

(i) The FIR which arises out of the incident of 9 May 2020implicates as many as 22 persons;

(ii) Accused 18-22, who are women, were granted bail, which isnot the subject matter of challenge; G(iii)Eleven accused are still in jail of whom eight persons arealleged to have wielded sharp-edged weapons there;

(iv) The charge sheet which has been submitted after investigationnames 110 witnesses;

(v) A charge sheet has been submitted in the cross-FIR as well;H

(vi) There was a free fight in the course of the incident on 9 May2020 resulting in injuries on the side of the accused and fivedeaths on the side of the informant; A

(vii) The genesis of the incident, as narrated in the FIR registeredon 9 May 2020, has been substantially altered in the courseof the statement of the informant recorded on 3 June 2020; B

(viii) The FIR made no reference to a free fight between the twogroups or to the injuries which were caused to the accused;

(ix) The post-mortem reports of 10 May 2020 would belie theallegation that the deaths were caused as a result of gunshotinjury; C

(x) An attempt was made to improve upon the allegations in theFIR in a subsequent statement of the informant on 3 June2020 to ensure that the allegations in regard to the weaponsused in causing the injuries are made consistent with the post-mortem reports which indicate the use of sharp-edgedweapons; D

(xi) The allegation in the FIR is that five persons on the side ofthe informant were hit by bullets and were lying on the landwhich is belied by the Post Mortem reports not indicatinggunshot injuries; and E

(xii) The nature of the incident is sought to be altered in thestatement which was recorded on 3 June 2020. The earlierversion which refers to gunshot injuries is replacedwith dhariya injuries and by the attempted use of fire arms.

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In summation, it has been urged on behalf of the accused that

(i) The presence of the accused at the scene of offence on 9May 2020 is established by the cross FIR;

(ii) The Post Mortem reports would demonstrate that all theinjuries were sustained by the deceased with sharp edgedGweapons and not as a result of fire arms or sticks;

(iii) There are three versions of the incident, which arecontained in the FIR, the subsequent statement and the Across FIR. A charge sheet has also been submitted afterthe investigation of the cross FIR;

(iv) As many as twenty-two persons have been roped in;(v)While the Sessions Judge had noticed the improvementwhich was made in the subsequent statement, bail wasBdenied only on the basis of the presence of the accused;and

(vi) In the event that this Court holds that adequate reasonshave not been adduced in the order dated 21 December2020 granting bail to A-6 an order of remand may beCwarranted.

18. The submissions of Mr Nikhil Goel have been buttressed byMr J S Atri, Senior Counsel by placing reliance on the decision in SanjayChandra v. Central Bureau of Investigation[3]. Learned Senior Counselspecifically highlighted that the subsequent statement dated 3 June 2020Dhas 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 submittingthat

(i) This is a case involving an ‘over implication’; E

(ii) The absence of blood marks on the clothes of Kheta ParbatKoli (A-15) and on the stick is a pointer to his innocence; and

(iii) It was the complainant’s side which had committed the initialact of aggression.

F19. The rival submissions now fall for analysis.

20. The first aspect of the case which stares in the face is thesingular absence in the judgment of the High Court to the nature andgravity of the crime. The incident which took place on 9 May 2020 resultedin five homicidal deaths. The nature of the offence is a circumstanceGwhich has an important bearing on the grant of bail. The orders of theHigh Court are conspicuous in the absence of any awareness or elaborationof the serious nature of the offence. The perversity lies in the failure ofthe High Court to consider an important circumstance which has a bearing H3 2012 (1) SCC 40

on whether bail should be granted. In the two-judge Bench decision ofthis Court in Ram Govind Upadhyay v. Sudharshan Singh[4] the natureof the crime was recorded as “one of the basic considerations” whichhas a bearing on the grant or denial of bail. The considerations whichgovern the grant of bail were elucidated in the judgment of this Courtwithout attaching an exhaustive nature or character to them. This emergesfrom the following extract:

“4. Apart from the above, certain other which may be attributedto 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 notonly the nature of the accusations, but the severity of thepunishment, if the accusation entails a conviction and the natureof evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses beingtampered with or the apprehension of there being a threat for thecomplainant should also weigh with the court in the matter of grantof bail.

(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonable doubt butthere ought always to be a prima facie satisfaction of the court insupport of the charge.

(d) Frivolity in prosecution should always be considered andit is only the element of genuineness that shall have to be consideredin the matter of grant of bail, and in the event of there being somedoubt as to the genuineness of the prosecution, in the normal courseof events, the accused is entitled to an order of bail.”

This Court further laid down the standard for overturning an ordergranting 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 andnot as a matter of course. Order for bail bereft of any cogentreason cannot be sustained.”

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A21. The principles governing the grant of bail were reiterated by atwo judge Bench in Prasanta Kumar Sarkar v. Ashis Chatterjee[5]:

“9. … It is trite that this Court does not, normally, interfere with anorder passed by the High Court granting or rejecting bail to theaccused. However, it is equally incumbent upon the High Court toBexercise its discretion judiciously, cautiously and strictly incompliance with the basic principles laid down in a plethora ofdecisions of this Court on the point. It is well settled that, amongother circumstances, the factors to be borne in mind whileconsidering an application for bail are:

(i) whether there is any prima facie or reasonable ground tobelieve that the accused had committed the offence; C

(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 releasedDon bail;

(v) character, behaviour, means, position and standing of theaccused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses beinginfluenced; and E

(viii) danger, of course, of justice being thwarted by grant ofbail.

[internal citation omitted]”

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Explicating the power of this Court to set aside an order grantingbail, this Court held:

“10. It is manifest that if the High Court does not advert to theserelevant considerations and mechanically grants bail, the said orderwould suffer from the vice of non-application of mind, rendering itGto be illegal...”

22. We are constrained to observe that the orders passed by theHigh Court granting bail fail to pass muster under the law. They areoblivious 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 NeeruYadav v. State of U.P.[6], this Court has held that while applying the principleof parity, the High Court cannot exercise its powers in a capricious mannerand 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 wastaken that the 2nd Respondent was a history sheeter, it wasimperative on the part of the High Court to scrutinize every aspectand not capriciously record that the 2nd Respondent is entitled tobe admitted to bail on the ground of parity. It can be stated withabsolute 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 thatthe 2nd Respondent has been charge sheeted in respect of numberof other heinous offences. The High Court has failed to take noteof the same. Therefore, the order has to pave the path of extinction,for its approval by this Court would tantamount to travesty ofjustice, and accordingly we set it aside.”

23. Another aspect of the case which needs emphasis is the mannerin which the High Court has applied the principle of parity. By its twoorders both dated 21 December 2020, the High Court granted bail toPravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought withSidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22October 2020 on the ground (as the High Court recorded) that he was“assigned similar role of armed with stick (sic)”. Again, bail was grantedto Vanraj Koli (A-16) on the ground that he was armed with a woodenstick 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 HighCourt has evidently misunderstood the central aspect of what is meant byparity. Parity while granting bail must focus upon role of the accused.Merely observing that another accused who was granted bail was armedwith a similar weapon is not sufficient to determine whether a case for thegrant of bail on the basis of parity has been established. In deciding theaspect of parity, the role attached to the accused, their position in relationto the incident and to the victims is of utmost importance. The HighCourt has proceeded on the basis of parity on a simplistic assessment asnoted above, which again cannot pass muster under the law.

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A24. The narration of facts in the earlier part of this judgementwould indicate that on 22 October 2020, a Single Judge of the High Courtgranted bail to Sidhdhrajsinh (A-13), The Single Judge noted that thename of A-13 is shown in the FIR for the incident which took place on 9May 2020. The circumstance which weighed with the Single Judge wasthat the informant in the subsequent statement which was recordedBtwenty-five days after the FIR on 3 June 2020, does not advert to overtact which was attributed in the FIR; though the presence of A-13 isshown, no specific role is attributed to him in the subsequent statement.Observing that the details in regard to the chronology of events whichtook place on 9 May 2020 “is in effect substituted” in the subsequentCstatement 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 enmitywith the side of the informant. Holding that this was sufficient to grantbail, the learned Judge observed:

“15. Learned Advocates appearing on behalf of theDrespective parties do not press for further reasoned order.”(emphasis supplied)

25. The order which was passed on 22 October 2020 in the caseof 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 grantedEon 21 December 2020 by the Single Judge who had passed orders dated22 October 2020 in the case of A-10 and A-15. The only reasons whichhave been indicated in the order of the Single Judge is that bail was beinggranted taking into consideration the facts of the case, the nature of theallegations, gravity of offences and role attributed to the accused.FThereafter, 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 grantingbail to Vanraj (A-16) was followed in the case of Dinesh (A-17) on theground of parity.

26. From the above conspectus of facts, it is evident that essentiallyGthe only order which contains a semblance of reasoning is the order dated22 October 2020 granting bail to A-13. As a matter of fact, the submissionswhich have been made on behalf of the accused substantially dwell onthe same line of logic in justifying the grant of bail on the ground that inthe subsequent statement dated 3 June 2020 of the informant, the genesisand details of the incident which took place on 9 May 2020 as elaboratedHin the FIR have undergone a substantial change.

27. In granting bail to the six accused, the High Court has committeda serious mistake by failing to recognize material aspects of the case,rendering the orders of the High Court vulnerable to assail on the groundof perversity. The first circumstance which should have weighed with theHigh Court but which has been glossed over is the seriousness and gravityof the offences. The FIR which has been lodged on 9 May 2020 advertsto the murder of five persons on the side of the informant in the course ofthe 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 ofthe Indian Penal Code were alleged. This is apart from the invocation ofthe provisions of Sections 25(1-b) A, 27 and 29 of the Arms Act andSection 135 of the Gujarat Police Act. The FIR which was lodged on 9May 2020 notes that the incident took place at 1:00 pm. A group ofpersons from the side of the informant, including the deceased, werereturning home at about 1:00 pm. The genesis of the incident is that thepath of their vehicle was blocked both from the front and the rear bytractors of the accused. The FIR specifically refers to the presence of theaccused Vishan (A-6), Sidhdhrajsinh Bhagubha Vaghela (A-13), VanrajKarshan Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli (A-10) and Dinesh Karshan Akhiyani (Koli) (A-17). It states that the accusedhad all come to the scene of offence with pistols, dhariyas and knives andthat initially Vishan (A-6) and two others had fired from their rifles as aresult of which five persons fell to the ground. Some of these accused –Vishan (A-6), Sidhdhrajsinh (A-13), Vanraj (A-16), Kheta (A-15), Pravin(A-10) and Dinesh (A-17) are alleged to have assaulted with dhariyas andlathis over the head and body of Akhabhai, Pethabhai, Amara, Lalji andVela. All of them were rushed to the Government Hospital where theywere pronounced dead.

28. Four days after the FIR was lodged by the informant on 9May 2020, a cross FIR was lodged by Vishan (A-6). This FIR containsa narration of the pre-existing dispute over land and to an incident whichhad taken place on 7 May 2020 which was resolved with the interventionof the community. The cross FIR dated 13 May 2020 stated that Vishan(A-6) sent his nephew together with Akhabhai to the police station toretrieve his motorcycle. The cross FIR specifically states that the side ofthe accused had decided to kill Akhabhai and in pursuance of this designhe proceeded in his vehicle together with his brother and some of theother 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 ABC

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ANikhil Goel by submitting that correctly translated from Gujarati, the intentwould be to assault and not to kill. Be that as it may, the cross FIRindicates the presence of all these accused and of their being armed withweapons to assault the deceased. A-6, in fact, states that in the course ofthe 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 triedBto run away from the scene but were way-laid and assaulted. The crossFIR also then states that several women from the side of the accusedcame to the scene of occurrence.29. A reading of the cross FIR which was lodged by Vishanbhai (A-6) on 13 May 2020 indicates: C

(i) An intent on the part of the accused to launch an assault onthe deceased;

(ii) The manner in which their pre-meditated design was soughtto be achieved by assaulting Akhabhai and the other deceasedpersons;D

(iii) An effort was made by Akhabhai and the other deceased torun away but this was prevented in the course of the assault;and

(iv) The accused had come armed with weapons to execute theirintent.E 30. In other words with the contents of the cross FIR as theystand, it was impossible for any judicial mind, while adjudicating upon theapplications for the grant of bail, to gloss over:

(i) The presence of the accused at the scene of occurrence on9 May 2020; F(ii)The accused being armed with weapons to accost Akhabhaiand the other persons accompanying him;

(iii) The intent to assault them; and

(iv) The actual incident in the course of which Akhabhai and fourother persons of his group were waylaid and assaulted,Gresulting in five homicidal deaths.

31. The Post Mortem reports which have been produced on therecord indicate the extensive nature of the bodily injuries which weresustained by each of the five deceased persons. It is true that in the FIRdated 9 May 2020, it was alleged that the deceased were fired upon as aHresult 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 resultof dhariyas and sticks. Whether the deaths occurred as a result of bulletwounds or otherwise can make no difference on whether a case for thegrant of bail was made out once a plain reading of the cross FIR indicatesboth the presence of the accused and the execution of their plan to assaultthe side of the informant with the weapons which were in the possessionof the accused. The High Court in its first order dated 22 October 2020was persuaded to grant bail on the specious ground that the details of theincident as they appeared in the subsequent statement of the informantdated 3 June 2020 are at variance with the FIR dated 9 May 2020. Theseare matters of trial. The High Court has, however, clearly overlooked thecross FIR dated 13 May 2020 lodged by A-6 and the implications of thecontent 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 ofwomen on the side of the accused is a fact which is noted in the cross FIRitself. Bail having been granted to A-18 to A-22 has not been the subjectmatter of the challenge in these proceedings. Hence, it is not necessary todwell on that aspect any further. It is important for the purpose ofevaluating this batch of cases at the present stage to also note the invocationof the provisions of the Section 149 of the Indian Penal Code.

32. Our analysis above would therefore lead to the conclusion thatthere has been a manifest failure of the High Court to advert to materialcircumstances, especially the narration of the incident as it appears in thecross FIR which was lodged on 13 May 2020. Above all, the High Courthas completely ignored the gravity and seriousness of the offence whichresulted in five homicidal deaths. This is clearly a case where the orderspassed by the High Court suffered from a clear perversity.

33. There is another aspect of this batch of cases which it isnecessary to note. In the order of the High Court dated 22 October 2020granting bail to Sidhdhrajsinh (A-13), there was a reference to thesubmission of the Public Prosecutor to the criminal antecedents of A-13bearing on previous FIRs registered against him in 2017 and 2019. Thisaspect bearing on the criminal antecedents of A-13 has not been consideredin the reasons which have been adduced by the Single Judge. In AshMohammad v. Shiv Raj Singh[7], this Court has held that criminalantecedents of the accused must be weighed for the purpose of grantingbail. That apart, it is important to note that the ground on which A-13 was AB

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Agranted bail is that in the subsequent statement dated 3 June 2020, theovert act which was attributed in the FIR was found to be missing. Havingsaid this, the learned Judge observed that the order shall not be treatedas a precedent to claim bail on the basis of parity in any other case.

34. We are left unimpressed with and disapprove of the aboveBobservation of the Single Judge. Whether parity can be claimed by anyother accused on the basis of the order granting bail to A-13 ought not tohave been pre-judged by the Single Judge who was dealing only with theapplication for the grant of bail to A-13. The observation that the grant ofbail to A-13 shall not be considered as a precedent for any other personwho is accused in the FIR on grounds of parity does not constitute judiciallyCappropriate reasoning. Whether an order granting a bail is a precedent ongrounds of parity is a matter for future adjudication if and when anapplication for bail is moved on the grounds of parity on behalf of anotheraccused. In the event that parity is claimed in such a case thereafter, it isfor that court before whom parity is claimed to determine whether a caseDfor the grant of bail on reasons of parity is made out. In other words, theobservations of the Single Judge which have been noticed above areinappropriate and erroneous. Moreover, as observed above in para 23,even while considering the ground of parity not only the weapon, butindividual role attributed to each accused must be considered. We havedwelt on this aspect of the matter in order to ensure that the position inElaw 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 ordersdated 21 December 2020 on the ground of parity as claimed with theorder dated 22 October 2020. The Single Judge observed that the AdditionalPublic Prosecutor had not made any point of distinction. Subsequently,Fparity 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 SingleJudge observed that:

“the learned advocates appearing on behalf of the respective partiesdo not press for further reasoned orders”

GA similar observation is contained in the order dated 20 January2021 of the Single Judge granting bail to Dinesh (A-17). Finally on thisaspect we would also advert to the order of the High Court dated 21December 2020 granting bail to Vishan (A-6) which again contains astatement that the “advocates appearing on behalf of the respective partiesHdo not press for a further reasoned order”.

35. We disapprove of the observations of the High Court in asuccession of orders in the present case recording that the Counsel for theparties “do not press for a further reasoned order”. The grant of bail is amatter which implicates the liberty of the accused, the interest of theState and the victims of crime in the proper administration of criminaljustice. It is a well-settled principle that in determining as to whether bailshould be granted, the High Court, or for that matter, the Sessions Courtdeciding an application under Section 439 of the CrPC would not launchupon a detailed evaluation of the facts on merits since a criminal trial isstill to take place. These observations while adjudicating upon bail wouldalso not be binding on the outcome of the trial. But the Court granting bailcannot 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 grantbail. The consent of parties cannot obviate the duty of the High Court toindicate its reasons why it has either granted or refused bail. This is forthe reason that the outcome of the application has a significant bearing onthe liberty of the accused on one hand as well as the public interest in thedue enforcement of criminal justice on the other. The rights of the victimsand their families are at stake as well. These are not matters involving theprivate rights of two individual parties, as in a civil proceeding. The properenforcement of criminal law is a matter of public interest. We must,therefore, disapprove of the manner in which a succession of orders inthe present batch of cases has recorded that counsel for the “respectiveparties do not press for further reasoned order”. If this is a euphemismfor not recording adequate reasons, this kind of a formula cannot shieldthe order from judicial scrutiny.

36. Grant of bail under Section 439 of the CrPC is a matter involvingthe exercise of judicial discretion. Judicial discretion in granting or refusingbail – as in the case of any other discretion which is vested in a court asa judicial institution – is not unstructured. The duty to record reasons is asignificant safeguard which ensures that the discretion which is entrustedto the court is exercised in a judicious manner. The recording of reasonsin a judicial order ensures that the thought process underlying the order issubject to scrutiny and that it meets objective standards of reason andjustice. This Court in Chaman Lal v. State of U.P.[8] in a similar vein hasheld that an order of a High Court which does not contain reasons forprima facie concluding that a bail should be granted is liable to be setaside for non-application of mind. This Court observed:

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A“8. Even on a cursory perusal the High Court’s order showscomplete non-application of mind. Though detailed examination ofthe evidence and elaborate documentation of the merits of the caseis to be avoided by the Court while passing orders on bailapplications. Yet a court dealing with the bail application should besatisfied, as to whether there is a prima facie case, but exhaustiveBexploration of the merits of the case is not necessary. The courtdealing with the application for bail is required to exercise itsdiscretion in a judicious manner and not as a matter of course.

9. There is a need to indicate in the order, reasons for prima facieconcluding why bail was being granted particularly where an accusedCwas charged of having committed a serious offence…”

37. We are also constrained to record our disapproval of the mannerin which the application for bail of Vishan (A-6) was disposed of. TheHigh Court sought to support its decision to grant bail by stating that ithad perused the material on record and was granting bail “withoutDdiscussing the evidence in detail” taking into consideration:

(1) The facts of the case;

(2) The nature of allegations;

(3) Gravity of offences; and

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(4) Role attributed to the accused.

As a matter of fact there is no discussion or analysis ofcircumstances at all. This lone sentence in the order of the Single Judgeleaves a Court before which the order granting bail is challenged,completely without guidance on the considerations which weighed withFthe High Court in granting bail. We appreciate that in deciding whetheror not to grant bail the High Court is not at a stage where it adjudicatesupon guilt. This is to be analyzed during the course of criminal trial whereevidence has been recorded. But surely, the order of the High Courtmust indicate some reasons why the Court has either granted or deniedGbail. The Sessions Judges in the present case have indicated their reasonsfor the ultimate conclusion. This unfortunately has not been observed inthe order of the High Court dated 21 December 2020. Dealing with asimilar formulation as in the present case, this Court has held recentlyheld as follows in Sonu v. Sonu Yadav[9]:

H9 Criminal Appeal No. 377 of 2021, decided on 5 April 2021

“11. In the earlier part of this judgment, we have extracted thelone sentence in the order of the High Court which is intended todisplay some semblance of reasoning for justifying the grant ofbail. The sentence which we have extracted earlier contains anomnibus amalgam of (i) “the entire facts and circumstances of thecase”; (ii) “submissions of learned Counsel for the parties”; (iii)“the nature of offence”; (iv) “evidence”; and (v) “complicity ofaccused”. This is followed by an observation that the “applicanthas made out a case for bail”, “without expressing any opinion onthe merits of the case”. This does not constitute the kind of reasoningwhich is expected of a judicial order. The High Court cannot beoblivious, in a case such as the present, of the seriousness of thealleged offence, where a woman has met an unnatural end withina year of marriage. The seriousness of the alleged offence has tobe evaluated in the backdrop of the allegation that she was beingharassed for dowry; and that a telephone call was received fromthe accused in close-proximity to the time of death, making ademand. There are specific allegations of harassment against theaccused on the ground of dowry. An order without reasons isfundamentally contrary to the norms which guide the judicialprocess. The administration of criminal justice by the High Courtcannot be reduced to a mantra containing a recitation of generalobservations. That there has been a judicious application of mindby the judge who is deciding an application under Section 439 ofthe CrPC must emerge from the quality of the reasoning which isembodied in the order granting bail. While the reasons may bebrief, it is the quality of the reasons which matters the most. Thatis because the reasons in a judicial order unravel the thoughtprocess of a trained judicial mind. We are constrained to makethese observations because the reasons indicated in the judgmentof the High Court in this case are becoming increasingly familiarin matters which come to this Court. It is time that such a practiceis discontinued and that the reasons in support of orders grantingbail comport with a judicial process which brings credibility to theadministration of criminal justice.”

38. What has been observed in the above extract equally appliesto the facts of the present case. There is no question now of ordering aremand to the High Court in the case of Vishan (A-6) since the questionof bail has been argued fully before this Court. Moreover, the case of ABC

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AVishan (A-6) has been considered together with the entire batch of casesin which bail has been granted- initially on 22 October 2020 in the case ofSidhdharajsinh (A-13), which has been followed on the grounds of parityin the case of the other accused.

39. The High Court has relied upon the decision of this Court inBSanjay Chandra v. Central Bureau of Investigation[10]. Whileconsidering the grant of bail in certain cases arising out of the 2G SpectrumScam, this Court observed as follows:

“21. In bail applications, generally, it has been laid down from theearliest times that the object of bail is to secure the appearance ofCthe accused person at his trial by reasonable amount of bail. Theobject of bail is neither punitive nor preventative. Deprivation ofliberty must be considered a punishment, unless it is required toensure that an accused person will stand his trial when called upon.The courts owe more than verbal respect to the principle thatpunishment begins after conviction, and that every man is deemedDto be innocent until duly tried and duly found guilty.”

Elaborating further, the Court held

“22. From the earliest times, it was appreciated that detention incustody pending completion of trial could be a cause of greatEhardship. From time to time, necessity demands that someunconvicted persons should be held in custody pending trial tosecure their attendance at the trial but in such cases, “necessity”is the operative test. In this country, it would be quite contrary tothe concept of personal liberty enshrined in the Constitution thatany person should be punished in respect of any matter, upon which,Fhe has not been convicted or that in any circumstances, he shouldbe deprived of his liberty upon only the belief that he will tamperwith the witnesses if left at liberty, save in the most extraordinarycircumstances.”

At the same time, the Court recognized in paragraph 24 of itsGdecision that:

“24. In the instant case, we have already noticed that the “pointingfinger of accusation” against the appellants is “the seriousness ofthe charge”. The offences alleged are economic offences which 10 2012 (1) SCC 40H

have resulted in loss to the State exchequer. Though, they contendthat there is a possibility of the appellants tampering with thewitnesses, they have not placed any material in support of theallegation. In our view, seriousness of the charge is, no doubt, oneof the relevant considerations while considering bail applicationsbut that is not the only test or the factor: the other factor that alsorequires to be taken note of is the punishment that could be imposedafter trial and conviction, both under the Penal Code and thePrevention of Corruption Act. Otherwise, if the former is the onlytest, we would not be balancing the constitutional rights but rather“recalibrating the scales of justice”.”

In Mahipal v. Rajesh Kumar Alias Polia[11]this Court observed as follows:

In Mahipal v. Rajesh Kumar Alias Polia[11]this Court observed as follows:

“16. The considerations that guide the power of an appellate courtin assessing the correctness of an order granting bail stand on adifferent footing from an assessment of an application for thecancellation of bail. The correctness of an order granting bail istested on the anvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail. The test is whetherthe order granting bail is perverse, illegal or unjustified. On theother hand, an application for cancellation of bail is generallyexamined on the anvil of the existence of supervening circumstancesor violations of the conditions of bail by a person to whom bail hasbeen granted. In Neeru Yadav v. State ofU.P. [NeeruYadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)527] , the accused was granted bail by the High Court [MitthanYadav v. State of U.P., 2014 SCC OnLine All 16031] . In an appealagainst the order [Mitthan Yadav v. State of U.P., 2014 SCCOnLine All 16031] of the High Court, a two-Judge Bench of thisCourt surveyed the precedent on the principles that guide the grantof 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 itis granted because the accused has misconducted himself orof some supervening circumstances warranting suchcancellation have occurred is in a different compartment C

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Aaltogether than an order granting bail which is unjustified, illegaland perverse. If in a case, the relevant factors which shouldhave been taken into consideration while dealing with theapplication for bail have not been taken note of, or bail is foundedon irrelevant considerations, indisputably the superior court canset aside the order of such a grant of bail. Such a case belongsBto a different category and is in a separate realm. While dealingwith a case of second nature, the Court does not dwell uponthe violation of conditions by the accused or the superveningcircumstances that have happened subsequently. It, on thecontrary, delves into the justifiability and the soundness of theCorder passed by the Court.”

In Mahipal (supra), this Court outlined the standards governingthe setting aside of bail by this Court in the following terms:

“17. Where a court considering an application for bail fails toconsider relevant factors, an appellate court may justifiably setDaside the order granting bail. An appellate court is thus required toconsider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view ofthe evidence on record.”

These two standards were reiterated in a recent decision of thisCourt in Prabhakar Tewari v. State of U.P.[12].E

40. The considerations which must weigh with the Court in grantingbail have been formulated in the decisions of this Court in RamGovind Upadhyay v. Sudarshan Singh[13]and Prasanta KumarSarkar v. Ashis Chatterjee[14](noted earlier). These decisions aswell as the decision in Sanjay Chandra (supra) were advertedFto in a recent decision of a two judge Bench of this Court dated 19March 2021 in The State of Kerala v. Mahesh[15] where theCourt observed:

“22…All the relevant factors have to be weighed by the Courtconsidering an application for bail, including the gravity of theGoffence, the evidence and material which prima facie show theinvolvement of applicant for bail in the offence alleged, the extent 12 (2020) 11 SCC 64813 (2002) 3 SCC 59814 (2010) 14 SCC 496H15 Criminal Appeal No 343 of 2021

of involvement of the applicant for bail, in the offence alleged,possibility of the applicant accused absconding or otherwisedefeating or delaying the course of justice, reasonable apprehensionof witnesses being threatened or influenced or of evidence beingtempered with, and danger to the safety of the victim (if alive), thecomplainant, their relatives, friends or other witnesses….”

Similarly, the Court held that the grant of bail by the High Courtcan 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 therelevant factors for such grant.

41. For the reasons which we have indicated above, we have cometo the conclusion that the orders granting bail to the respondent-accusedVishan Heera Koli (A-6), Pravin Heera Koli (A-10), SidhdhrajsinhBhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj KarshanKoli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17) suffer from aclear perversity. We accordingly allow these appeals and set aside thefollowing orders of the High Court:

42. All the above accused are directed to surrender forthwith.The copy of the order shall be forwarded to the Sessions Judge to securecompliance forthwith.

43. Pending application(s), if any, stand disposed of.

Nidhi Jain

Appeals allowed

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