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Supreme Court Declares That Consent of Parties Cannot Obviate Duty of Court To Indicate Its Reasons for Granting or Refusing Bail

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In the present case, the Supreme Court rejected the previous decisions thereby set aside the orders of the High Court of Gujarat granting bail, under Section 439 of the Criminal Procedure Code to six murder accused who were arrested for their alleged involvement in five homicidal deaths. The previous decision was rejected as the Hon’ble Court observed that the order suffered from perversity, was erroneous and inappropriate. The Court also asserted that a Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, to decide whether or not to grant bail.  

Facts of the Case 

In the present case, a batch of five appeals was made because of the orders of the High Court of Gujarat granting bail, under Section 439 of the Code of Criminal Procedure, to six persons who have been implicated in five homicidal deaths. A First Information Report (FIR) 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. Further the Appellant – Ramesh Bhavan Rathod – was the informant on whose statement, the FIR was registered. The incident which led to the commission of five murders had its genesis in a land dispute. The informant alleged that at 1 pm, the informant, Pethabhai, and Akhabhai were returning home in a Scorpio vehicle with five other persons. But When the vehicle was passing a road Lakha Koli along with two more persons, and Kanji Koli waylaid the Scorpio and its occupants. As the informant and others attempted to run away from the scene, he saw the homicidal incident. Further, the incident resulted in the death of five persons. The authorities arrested the accused. Besides, two country-made guns, two indigenous counterfeit guns, four dhariyas, and one wooden stick were found at the offence site. Among the twenty-two accused, 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. Who were named in the charge-sheet were granted bail before the High Court, Further, it was stated that A-10 and A-15 were both granted bail on 21 December 2020 based on parity claimed based on the order dated 22 October 2020 granting bail to A-13. The orders dated 19 January 2021 granting bail to A-16 and A-17 on 20 January 2021 were also based on parity. But the Petitioners were not satisfied by the above and hence the present appeals were made.

Petitioner’s Arguments

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. 

Respondent’s Arguments

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.

Court’s Observation 

The Court scrutinized the facts and the bail order given by the High Court. Firstly, by scrutinizing the bail order the Court disapproved of the approach of the High Court that ‘Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order’. Disapproving this approach, the bench observed that the grant of bail is a matter which involves 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 in ascertaining 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, to decide whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it had 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. Moreover, the rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individuals parties as in a civil proceeding.  The proper enforcement of criminal law is a matter of public interest. Therefore, how a succession of orders in the present batch of cases had been recorded that counsel for the “Respective parties do not press for further reasoned order” was disapproved. Further, the Bench also remarked that if this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny.”  Further, the Court perceived that the 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 that ensures that the discretion which is entrusted to the court is exercised judiciously. Moreover, 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. Additionally, the Court gave a reference to a prominent case namely, Chaman Lal v. the State of U.P.

Further, the Court remarked that the nature of the offence is a circumstance that has an important bearing on the grant of bail. 

Concerning the nature of the offence, the court noted that the orders of the High Court didn’t have any discussion about the serious nature of the offence. Further, the orders of the High Court were conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. Hence, the perversity lied in the failure of the High Court to consider an important circumstance that has a bearing on whether bail should be granted.  To elaborate more a case was referred, Ram Govind Upadhyay v. Sudharshan Singh, in which the two-judge Bench decided that the nature of the crime was to be recorded as “one of the basic considerations” which also has a bearing on the grant or denial of bail. 

Keeping in mind the circumstances of this case the Court observed that the orders passed by the High Court granting bail fail to pass muster under the law. As they were 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

The subsequent issue scrutinized by the Court was that whether an order granting bail is a precedent on grounds of parity is a matter for future adjudication?  In the context of this case, the High Court while granting bail had observed that the order would not be treated as a precedent in any other case on grounds of parity. But this approach of the High Court was also disapproved by the Court. As 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 didn’t constitute judicially appropriate reasoning. Moreover, whether parity can be claimed by any other accused based on the order granting bail to A-13 cannot be pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. Besides this, if a bail application is moved on the grounds of parity on behalf of another Accused then the issue concerning whether an order granting bail is a precedent on grounds of parity is a matter for future adjudication parity. and if any such parity is claimed thereafter, it is to be decided by the Court before whom the parity is claimed. Consequently, the observations of the Single Judge which were noticed above were inappropriate and erroneous.

Court’s Decision 

The Court held that the grant of bail by the High Court was to be set aside, as the same was based on non-application of mind or was innocent of the relevant factors for such grant.  For the aforementioned reasons, it was concluded the orders granting bail to the respondents-accused suffered from a clear perversity. And thereby allows the present appeals and directed the accused to surrender forthwith.

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