The Supreme Court recently comprising of a bench of Justices DY Chandrachud and MR Shah observed that consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refuse bail. (Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli) )
The bench observed that a 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.
Facts of the case
This batch of five appeals were raised from the orders of the High Court of Gujarat granting bail, under Section 439 of the Crpc, six persons who had been implicated in five homicidal deaths.
The FIR was registered for offences under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of the Ipc, Sections 25(1-b) A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act.
The appellant was the informant on whose statement, the FIR was registered at 19:30 hours in respect of an incident which took place at 13:00 hours. The incident took place in Hamirpur which led to the commission of five murders had its genesis in a land dispute. The informant alleged that he and his brother had gone to their farm at 6:00 am. At 1 pm, the informant and his brother-in-law were returning home in a Scorpio vehicle with five other persons. When the vehicle reached the untarred road passed through the farm, two persons came out along and dashed his tractor on the front portion of the Scorpio vehicle. He parked his tractor on the rear side of the Scorpio, behind which another Sumo vehicle came to be stationed. The Scorpio and its occupants were waylaid. As the informant 1 and others attempted to run away from the scene, he saw the homicidal incident resulted in the death of five persons. About fifteen years ago certain agricultural land had been sold to another person, gave it for cultivation and he was refusing to give the fields for cultivation to the informant as a result of which a quarrel had taken place.
Contention of the parties
Learned Senior Counsel, Mr Vinay Navare, appearing on behalf of the Appellant – informant stated 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 was that while the FIR was registered on 9 May 2020, the statement of the informant was recorded on 3 June 2020. And this statement recorded on 3 June had substantial changes in the genesis of the incident including the nature of the weapons. One more such instance was in the case of A-6. The allegation in the FIR was that Vishan (A-6) fired several rounds from a rifle together with other persons, but the subsequent statement indicated that the injuries had been caused not as a result of the use of firearms but by a sharp weapon. The Learned Counsel stated that granting bail on these afore-mentioned allegations was not justified as to 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) was not relevant at this stage.
Moreover, 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 death outline the genesis of the incident and consequently, it was sufficient to deny bail. Further, On the above axioms, it was urged that the High Court had committed a grievous error in granting bail in the first instance on 22 October 2020 and in following the earlier order based on parity. Besides, it was submitted that the order granting bail to Vishan (A-6), who was the main accused, on 21 December 2020 does not contain any reasons whatsoever.
Further, It was urged that while granting bail, the Chief Justice had merely observed that the Advocates who appeared on behalf of the respective parties “do not press for further reasoned order”. This, it was urged, as anathema to criminal jurisprudence. Moreover, 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”.
Further, the submissions urged by Mr Vinay Navare, Senior Counsel were supported during their submissions by Ms Jaikriti S Jadeja and Mr Aniruddha P Mayee, Learned Counsel appearing on behalf of the State of Gujarat.
Learned Counsel, Mr Nikhil Goel, appearing on the behalf of the Accused supported the orders of the High Court granting bail on the following submissions: first is that the presence of the accused at the scene of offence on 9 May 2020 was only established by the cross FIR; second is that 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 firearms or sticks; third is that there were 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; fourth is that As many as twenty-two persons had been roped in; fifth is that moreover, the Sessions Judge had noticed the improvement made in the subsequent statement, bail was denied only based on the presence of the accused. And lastly, he urged that If 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.
Courts Observation and judgment
The apex court said that consent of parties cannot obviate the duty of high court to indicate its reasons why it has either granted or refused bail as outcome of the application has a significant bearing on the liberty of the accused on the one hand as well as public interest in due enforcement of criminal justice on the other.
In the order granting bail, the High Court recorded that 'Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order'. Disapproving this approach, the bench observed:
"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."
"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."
The top court also noted that four days after the FIR was registered, a cross FIR was lodged by one of the accused.
It noted in its verdict that the nature of the offence is a circumstance which has an important bearing on the grant of bail.
It said, “The orders of the high court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the high court to consider an important circumstance which has a bearing on whether bail should be granted”.
The bench also pointed out to the manner in which the high court had applied the principle of parity in granting bail to some of these accused.
“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,” it said.
The bench said 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.
In this case, the High Court while granting bail, observed that the order would not be treated as precedent in any other case on grounds of parity. Disapproving this, the bench said:
"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."
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