Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana (koli) & Anr.
DR. DHANANJAYA Y CHANDRACHUD, J.
1. This batch of five appeals arises from orders of the High Court
of Gujarat granting bail, under Section 439 of the Code of Criminal
Procedure 19731, to six persons who have been implicated in five homicidal
deaths.
2. A First Information Report ( “FIR”) being CR No
11993005200314 was registered on 9 May 2020 at Police Station Aadesar,
District East Kachchh - Gandhidham for offences under Sections 302,
143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of the Indian
Penal Code, Sections 25(1-b) A, 27 and 29 of the Arms Act and Section
135 of the Gujarat Police Act. The appellant - Ramesh Bhavan Rathod -
is the informant on whose statement, the FIR was registered a t 1930
hours in respect of an incident which took place at 1300 hours. The
incident took place in village Hamirpur which is at a distance of 20 kms
from the police station. The incident which led to the commission of five
1 “CrPC”
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI)
murders had its genesis in a land dispute. The informant alleged that he
and his brother Pethabhai had gone to their farm at 6:00 am. At 1 pm, the
informant, Pethabhai and his brother-in-law Akhabhai were retur ning
home in a Scorpio vehicle with five other persons. When the ve hicle
reached the untarred road passing through the farm of Lakha Hira Koli
and Kanji Bijal Koli, these two persons came out along with Lakha Hira
Koli. Lakha Koli dashed his tractor on the front portion of the Scorpio
vehicle. Kanji Koli parked his tractor on the rear side of the Scorpio,
behind which another Sumo vehicle came to be stationed. The Scorpio
and its occupants were waylaid. As the informant and others attempted
to run away from the scene, he saw the homicidal incident whic h he
describes in the following terms:
“..At that time I saw that Dhama Ghela Koli, Devendrsinh alias
Lalubha Ghelubha Vaghela, Vishan Hira Koli, Bharat Mamu Koli,
Dilip Mamu Koli, Ramshi Hira Koli, Pravin Hira Koli, Bhaghubha
Hasubha Vaghela, Mohansang Umedasng Vaghela and Vanraj Karsan
Koli and Dinesh Karsan Koli all come with weapons Pistol, Dhariya,
Knife from the thorny fence nearby, in which Dhama Gela Koli
and Devendrasinh alias Lalubha Gelubha Vaghela and Visan Hira
Koli and Bharat Mamu Koli had fired rounds from Rifles in their
hand targeting Akhabhai and others at that time. Ak habhai
Jeshangbhai Umat my Brother Pethabhai Bhavanbhai Rathod and
Amara Jeshang Umat and Lalji Akhabhai Umat and Vela Panchabhai
Umat injured due to firing and laying on land and that time Lakha
Hira Koli’s Wife, Kanji Bijal Koli’s Wife Lakhman Bijal Koli’s
Wife and Dhama Ghela Koli’s Wife and Vishan Hira Koli’s Wife
also come there, their name is I do not know, and Visan Hira Kofi
talk with Akhabhai that why you are cultivating my father and
grand father’s land that is our land we also said before that this
land you do not cultivate so today your life is over. This was said
by Visan Hira Koli and thereafter Dilip Mamu Koli, Ramshi Hira
Kofi, Bhaghubha Hasubha Vaghela Mohansang Umedsang Vaghela
and Prabhu Ghela Koli, with Dhariya in their hands and in the
hands Pravin Hira Koli, Siddhrajsinh Bhaghubha Vaghela, Kheta
Parbat Koli, Vanraj Karsan Koli, and Dinesh Karsan Kofi with
Lathi (Wooden Stick) and all together assaulted blindly with Dhariya
& Lathi over the head and body of Akhabhai Jeshangbhai Umat
and my brother Pethabhai Bhavanbhai Rathod and Amara Jeshang
Umat and Lalji Akhabhai Umat and Vela Panchabhai Umat and
27
those people when assaulted that time all five are shouting “save
save” but those people are in large gathering so I cannot go near
so I cannot save those five those because they will kill me so I ran
away from and I go to my Village…”
3. The incident resulted in the death of five persons. Among the
twenty-two accused are Vishan Heera Koli (A-6), Pravin Heera Koli (A-
10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15),
Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).
The post-mortem was conducted on 10 May 2020. A panchnama is alleged
to have been conducted at the scene of offence on the next day, i.e. on 10
May 2020, resulting in the recovery of, inter alia, two country made
guns, two indigenous counterfeit guns, four dhariyas and one wooden
stick.
4. On 13 May 2020, a cross FIR was registered at the behest of
Vishan Heera Makwana (Koli) being FIR No 11993005200315 at Police
Station Aadesar. The informant in the cross FIR claims to be an original
resident of village Hamirpar and is presently residing at Village Anjar. The
FIR states that after the lockdown had been declared on 25 March 2020,
the informant had left Anjar to go to village Hamirpar. About fifteen years
ago certain agricultural land had been sold to another per son, who
subsequently gave it for cultivation to Akhabhai. Akhabhai was refusing
to give the fields for cultivation to the informant as a result of which a
quarrel had taken place on 7 May 2020. The informant’s motor cycle had
been taken away by the police. The issue had been settled at the intervention
of persons belonging to the community and no complaint was filed.
According to the cross FIR on 9 May 2020, the informant Vishan sent his
nephew to the Police Station together with Akhabhai to retrieve the motor
cycle. The cross FIR narrates Vishan’s version of the incident which took
place on 9 May 2020 in the following terms:
“..We have decide to kill Akhabhai hence I myself along with my
Brother Lakhbhai Hira Koli, Dinesh Karshan Koli, and Lalubha
Ghelubha Vaghela sat in Ritz Car and proceeded towards Bhimasar
at the time I was driving the said Car and I tried to dash the said
Car with Akhabhai and tried to kill him. But Akhabhai ran away
nearby and we came to our field (Wadi) There after around 12’0
Clock noon Akhabhai ring me on my mobile phone and said that
why you have tried to dashed by car of Lalubha. I have given
false reply that I am sitting on my field (Wadi) I am not involved.
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
Akhabhai told me we are coming to you field (Wadi) for quarrel
be ready for quarrel at that time I myself along with my brother
Lakha Hira Koli, Ramsi Koli, Pravin, Dhama Gela Kol i,
Devendrasinh , Iliyas Lalubha Vaghela, Bharat Mamu Koli, Dilip
Mamu Koli, Bhagubha Hansubha Vaghela, and his son Monsang
Umedsang Vaghela, Prabhu Gela Koli, Kheta Parbar Koli, Vanraj
Karshan Koli, Dinesh Darshan Koli were present their I have told
this fact to them that Jeseng Umat along with his men are coming
at our wadi for quarreling with us so we all armed with weapons
we came near by our field’s boundary and we all are become
ready for quarrel and sat nearby Lakhman Bijal’s field and tha t
time white color jeep came that at about place near about wadi
Ramesh Bhavan Rathod come down for jeep along with dhariya
in his hand, Akhabhai came down with his gun, Akhabhai abused
me “I have pride to save” at that time Ramesh Bhavan Rat hod
given blow with dhariya I have tried to save myself and I ha ve
lifted up my left hand so dhariya blow caused injury in my le ft
hand I have fallen down on earth and blood coming out for my left
hand at the time Akhabhai given blow of gun on my brother namely
Ramsi on his hand- at that time Akha son Lalji - Amra Jeseng
Umat - Vela Pancha Umat - Petha Bhavan Rathod - Akhabhai’s
younger son Dharmendra - Papu Gabha Umat, came down from
jeep and tried to attack on me at that time my brother Pr avin
Dhama Gela Koli, Devendrasinh, Iliyas Lalubha Vaghela, Bharat
Mamu Koli, Dilip Mamu Koli, Bhagubha Hansubha Vaghela, and
his son Mohansang Umedsang Vaghela, Prabhu Gela Koli, Kheta
Parbat Koli, Vanraj Karsan Koli, Dinesh Karsan Koli, came along
with the arms at that time Akho and his person’s tried to ran away
with the Scorpio jeep. My brother namely Lakhabhai dashed that
jeep by tractor at that time my another cousin brother Kanji Bijal
came with the another tractor and Lakhman Bijal came with the
sumo jeep and dashed with the jeep of Akhabhai. At that time our
ladies came down during quarrel Ramesh Bhavan Rathod- Papu
Gabha Umat - Akhabhai Son Dharmendra ran away at that time
the our persons who came there assaulted with the dhariya a nd
lakdi’s on Akhabhai- Velabhai-Pethabhai-Amrabhai And Lalji and
this quarrel i have been injured…”
5. Vishan was arrested on 18 May 2020. A further statement of
the informant in the original FIR dated 9 May 2020 was recorded on 3
June 2020. After investigation, the charge-sheet was submitted by the
29
investigating officer against Vishan and twenty-two co-accused. On 31
August 2020, an application for interim bail moved by Vishan on medical
grounds was rejected by the Sessions Judge, Bhachau, Kachchh taking
note of the fact that the accused had produced fake documents for the
purpose of obtaining bail. An application seeking regular bail under Section
439 of the CrPC was rejected by the Additional Sessions Judge, Bhachau
on 4 December 2020.
6. Among the twenty-two accused, who are named in the charge-
sheet, these proceedings arise out of the applications for bail which were
moved before the High Court on behalf of the six persons namely:
Vishan Heera Koli - Accused no.6
Pravin Heera Koli - Accused no.10
Sidhdhrajsinh Bhagubha Vaghela - Accused no.13
Kheta Parbat Koli - Accused no.15
Vanraj Karshan Koli - Accused no.16
Dinesh Karshan Akhiyani (Koli) - Accused no.17
7. The orders passed by the High Court granting bail to the above
persons are tabulated below:
At this stage, it is necessary to note that A-10 and A-15 were both
granted bail on 21 December 2020 on the basis of parity claimed on the
basis of the order dated 22 October 2020 granting bail to A-13. T he
orders dated 19 January 2021 granting bail to A-16 and to A-17 on 20
January 2021 are also based on parity.
8. Chronologically, the first order of the High Court granting bail
was to Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020.
The High Court observed thus:
Sl No. Name of the accused Accused No. Date of order
1 Vishan Heera Koli 6 21 December 2020
2 Pravin Heera Koli 10 21 December 2020
3 Sidhdhrajsinh Bhagubha Vaghela 13 22 October 2020
4 Kheta Parbat Koli 15 21 December 2020
5 Vanraj Karshan Koli 16 19 January 2021
6 Dinesh Karshan Akhiyani (Koli) 17 20 January 2021
“14. Having considered the rival submissions and having gone
through the materials on record, it appears that though the name of
the applicant and is shown in the FIR for the alleged offences
punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384,
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
120B, 506 and 34 of the I.P.C., offence punishable under Section
25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat
Police Act, for the incident which took place on 9th May 2020, on
perusal of the charge-sheet papers, it appears that the complainant
in the subsequent statement dated 3rd June 2020, which has been
recorded after 25 days from the date of incident, the overt tact
which was attributed in the FIR, is missing. Though the complainant
has stated that the applicant was present, but no role is attributed
in the subsequent statement, which was recorded on 3rd June,
2020, wherein the details with regard to chronology of events which
took place at the place of the incident on 9th May 2020 is in effect
substituted by the complainant in the additional statement dated
3rd June 2020 by narrating altogether different details. At t his
juncture, this Court is not going into the details of the incident as it
may affect the trial at the later point of time. Suffice is to say
prima facie appears that the applicant has been involved in alleged
offences due to pending proceedings of the previous offences and
enmity with the complainant side…”
9. In addition, the Single Judge observed that:
(i) The accused was in jail since 19 May 2020;
(ii) The charge-sheet had been filed after investigation; and
(iii) The trial was likely to take time as 110 witnesses were to be
examined.
Reliance was placed on the decision of this Court in Sanjay
Chandra v. Central Bureau of Investigation2. The orders granting bail
to A-10 and A-15 (21 December 2020); to A-16 (19 January 2021); and
to A-17 (20 January 2021) are based on parity.
10. The main accused, Vishan (A-6) was granted bail on 21
December 2020. The reasons adduced by the Single Judge of the High
Court are contained in paragraphs 7, 8 and 9 of the order which reads
thus:
“7. Having heard the learned advocates for the parties and perusing
the material placed on record and taking into consideration the
facts of the case, nature of allegations, gravity of offences , role
attributed to the accused, without discussing the evidence in detail,
2 2012 (1) SCC 40
31
this Court is of the opinion that this is a fit case to exer cise the
discretion and enlarge the applicant on regular bail.
8. Looking to the overall facts and circumstances of the present
case, I am inclined to consider the case of the applicant.
9. This Court has also taken into consideration the law laid down
by the Hon’ble Apex Court in the case of Sanjay Chandra Vs.
Central Bureau of Investigation, reported in [2012] 1 SCC 40.”
11. The allegations against all the accused in the present batch of
appeals arise out of the same incident. All the appeals have hence been
heard together.
12. Mr Vinay Navare, Senior Counsel and Ms Jaikriti S Jadeja,
Counsel have appeared in support of the appeals, all of which had been
filed by the informant. Mr Nikhil Goel, Counsel appeared on behalf of
the respondent-accused. In pursuance of the notice issued on 5 February
2021, Mr Aniruddha P Mayee has entered appearance on behalf of the
State of Gujarat. Insofar as the accused are concerned, the position before
the Court as recorded in the order dated 5 April 2021 reads thus:
“SLP (Crl) 790/2021 - sole accused represented by Mr
Nikhil Goel
SLP (Crl) 1245/2021 - sole accused – no appearance
entered despite service
SLP (Crl) 1246-47/2021 - two accused represented by Mr
Purvish Malkan and Mr Nikhil Goel
SLP (Crl) 1248/2021 - sole accused – no appearance entered
despite service
SLP (Crl) 1249/2021 - sole accused represented by Mr J S
Atri, instructed by Mr Haresh
Raichura”
Since in two of the Special Leave Petitions namely Special Leave
Petition (Crl) Nos. 1245 and 1248 of 2021, no appearance had been
entered on behalf of the accused despite service of notice, this Court by
its order dated 5 April 2021 requested Mr Nikhil Goel to represent them.
We appreciate the able assistance which has been rendered by Mr Nikhil
Goel as an officer of the Court who has acted as an amicus curiae for
the two unrepresented accused as well.
13. Mr Vinay Navare, learned Senior Counsel appearing on behalf
of the appellant – informant submits that the primary basis on which the
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
first order granting bail was passed by the High Court in th e case of
Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020 is that while
the FIR was registered on 9 May 2020, the statement of the informant
was recorded on 3 June 2020, in which there have been substantial changes
in the genesis of the incident including the nature of the weapons. While
the allegation in the FIR is that Vishan (A-6) fired several rounds from a
rifle together with other persons, the subsequent statement would indicate
that the injuries had been caused not as a result of the use of firearms but
by a sharp weapon. The following submissions have been urged:
(i) The cross FIR lodged by Vishan (A-6) on 13 May 2020
indicates that an incident had taken place on 9 May 2020;
(ii) During the course of the incident, five homicidal deaths
resulted on the side of the informant (of the FIR dated 9 May
2020);
(iii) The cross FIR lodged on 13 May 2020 contains a reference
to:
a. The accused being armed with weapons;
b. Pre-meditation on the part of the accused to waylay
and assault the side of the informant; and
c. The assault being committed by the accused as the
deceased were attempting to flee after their vehicle had
been cornered by two tractors belonging to the side of
the accused.
(iv) The presence of the accused and the role attracted to the m
has been spelt out not only in the FIR but it is evident from
the cross FIR which was subsequently registered on 13 May
2020 at the behest of Vishan (A-6);
(v) The cross FIR which sets out the version of the accused
would indicate that the accused were the aggressors; and
(vi) Whether the five deaths were caused as a result of firear m
injuries (as alleged in the FIR dated 9 May 2020) or due to
dhariyas (as alleged in the statement recorded on 3 June 2020)
is not relevant at this stage. The presence of the accused, the
pre-meditation on their part, the assault committed on persons
belonging to the side of the informant and the resultant five
homicidal deaths which form the genesis of the incident should
be sufficient to deny bail.
33
14. On the above premises, it has been urged that the High Court
has committed a grievous error in granting bail in the first instance on 22
October 2020 and in following the earlier order on the basis of parity.
Moreover, it has been submitted that the order granting bail to Vishan (A-
6), who is the main accused, on 21 December 2020 does not contain any
reasons whatsoever. It was urged that while granting bail, the Chief Justice
has merely observed that the Advocates who appeared on behalf of the
respective parties “do not press for further reasoned order”. This, it was
urged, is an anathema to criminal jurisprudence. The High Court while
exercising its jurisdiction under Section 439, is required to apply its mind
objectively and indicate reasons for the grant of bail. This duty cannot be
obviated, it was urged, by recording that the Counsel for the parties did
not press for “a further reasoned order”.
15. The submissions urged by Mr Vinay Navare, Senior Counsel
have been supported during the course of her submissions by Ms Jaikriti
S Jadeja. Learned counsel, in addition, adverted to the following
circumstances:
(i) The registration of three prior FIRs against Sidhdhrajsinh
Bhagubha Vaghela (A-13);
(ii) The observation of the High Court while granting bail that the
order would not be treated as precedent in any other case on
grounds of parity; and
(iii) The grant of bail on the basis of parity alone to Vanraj Karshan
Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli
(A-10) and Dinesh Karshan Akhiyani (Koli) (A-17).
16. Mr Aniruddha P Mayee, learned Counsel appearing on behalf
of the State of Gujarat has supported the submissions of the appellant in
the challenge to the orders granting bail on the following grounds:
(i) The grant of bail by the High court to the six accused persons
in this batch is not justified having regard to the following
circumstances:
a. The main accused Vishan (A-6) was a resident of Anjar
and had come to Hamirpur;
b. There was an earlier incident which had taken place
involving an altercation with the deceased Akhabhai;
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
c. A compromise was arrived at in the course of the dispute
with the intervention of the community;
d. As the cross FIR by Vishan (A-6) narrates, on 9 May
2020- the conduct of the accused was pre-meditated;
e. The incident took place at 1:00 pm when the side of the
informant (in the FIR dated 9 May 2020) was returning
from their fields for lunch when they were waylaid and
obstructed by vehicles of the accused both at the front
and the rear;
f. The side of the accused had collected 22 persons for
executing a pre-meditated design to assault the group of
the informant with deadly weapons;
g. Whether or not the rifles had been fired, the panchnama
notes the recovery of the weapons;
h. Both Vishan (A-6) and Sidhdhrajsinh Bhagubha Vaghela
(A-13) have criminal antecedents, there being earlier FIRs
registered against them;
i. The Sessions Judge noted that A-6 had even attempted
to obtain bail on medical grounds on the basis of a false
identity; and
j. The complicity of the accused, their intent, presence and
role are amply supported by the cross FIR.
17. Mr Nikhil Goel, learned Counsel appearing on behalf of the
accused has on the other hand supported the orders of the High Court
granting bail on the following submissions:
(i) The FIR which arises out of the incident of 9 May 2020
implicates as many as 22 persons;
(ii) Accused 18-22, who are women, were granted bail, which is
not the subject matter of challenge;
(iii) Eleven accused are still in jail of whom eight persons are
alleged to have wielded sharp-edged weapons there;
(iv) The charge sheet which has been submitted after investigation
names 110 witnesses;
(v) A charge sheet has been submitted in the cross-FIR as well;
35
(vi) There was a free fight in the course of the incident on 9 May
2020 resulting in injuries on the side of the accused and five
deaths on the side of the informant;
(vii) The genesis of the incident, as narrated in the FIR registered
on 9 May 2020, has been substantially altered in the course
of the statement of the informant recorded on 3 June 2020;
(viii) The FIR made no reference to a free fight between the two
groups or to the injuries which were caused to the accused;
(ix) The post-mortem reports of 10 May 2020 would belie the
allegation that the deaths were caused as a result of gunshot
injury;
(x) An attempt was made to improve upon the allegations in the
FIR in a subsequent statement of the informant on 3 June
2020 to ensure that the allegations in regard to the weapons
used in causing the injuries are made consistent with the post-
mortem reports which indicate the use of sharp-edge d
weapons;
(xi) The allegation in the FIR is that five persons on the side of
the informant were hit by bullets and were lying on the land
which is belied by the Post Mortem reports not indicating
gunshot injuries; and
(xii) The nature of the incident is sought to be altered in the
statement which was recorded on 3 June 2020. The earlier
version which refers to gunshot injuries is replace d
with dhariya injuries and by the attempted use of fire arms.
In summation, it has been urged on behalf of the accused that
(i) The presence of the accused at the scene of offence on 9
May 2020 is established by the cross FIR;
(ii) The Post Mortem reports would demonstrate that all the
injuries were sustained by the deceased with sharp edged
weapons and not as a result of fire arms or sticks;
(iii) There are three versions of the incident, which are
contained in the FIR, the subsequent statement and the
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
cross FIR. A charge sheet has also been submitted after
the investigation of the cross FIR;
(iv) As many as twenty-two persons have been roped in;
(v) While the Sessions Judge had noticed the improvement
which was made in the subsequent statement, bail was
denied only on the basis of the presence of the accused;
and
(vi) In the event that this Court holds that adequate reasons
have not been adduced in the order dated 21 December
2020 granting bail to A-6 an order of remand may be
warranted.
18. The submissions of Mr Nikhil Goel have been buttressed by
Mr J S Atri, Senior Counsel by placing reliance on the decision in Sanjay
Chandra v. Central Bureau of Investigation3. Learned Senior Counsel
specifically highlighted that the subsequent statement dated 3 June 2020
has materially altered the genesis as well as the details of the incident.
Similar submissions have been urged by Mr Purvish Jitendra Ma lkan,
learned Counsel appearing on behalf of some of the accused by submitting
that
(i) This is a case involving an ‘over implication’;
(ii) The absence of blood marks on the clothes of Kheta Parbat
Koli (A-15) and on the stick is a pointer to his innocence; and
(iii) It was the complainant’s side which had committed the initial
act of aggression.
19. The rival submissions now fall for analysis.
20. The first aspect of the case which stares in the face i s the
singular absence in the judgment of the High Court to the natu re and
gravity of the crime. The incident which took place on 9 May 2020 resulted
in five homicidal deaths. The nature of the offence is a circ umstance
which has an important bearing on the grant of bail. The orders of the
High Court are conspicuous in the absence of any awareness or elaboration
of the serious nature of the offence. The perversity lies in the failure of
the High Court to consider an important circumstance which has a bearing
3 2012 (1) SCC 40
37
on whether bail should be granted. In the two-judge Bench decision of
this Court in Ram Govind Upadhyay v. Sudharshan Singh4 the nature
of the crime was recorded as “one of the basic considerations ” which
has a bearing on the grant or denial of bail. The considerati ons which
govern the grant of bail were elucidated in the judgment of thi s Court
without attaching an exhaustive nature or character to them. This emerges
from the following extract:
“4. Apart from the above, certain other which may be attributed
to be relevant considerations may also be noticed at this juncture,
though however, the same are only illustrative and not exhaustive,
neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not
only the nature of the accusations, but the severit y of the
punishment, if the accusation entails a conviction and the nature
of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a threat for the
complainant should also weigh with the court in the matter of grant
of bail.
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable doubt but
there ought always to be a prima facie satisfaction of the court in
support of the charge.
(d) Frivolity in prosecution should always be considered and
it is only the element of genuineness that shall have to be considered
in the matter of grant of bail, and in the event of there being some
doubt as to the genuineness of the prosecution, in the normal course
of events, the accused is entitled to an order of bail.”
This Court further laid down the standard for overturning an order
granting bail in the following terms:
“3. Grant of bail though being a discretionary order — but, however,
calls for exercise of such a discretion in a judicious manner and
not as a matter of course. Order for bail bereft of any coge nt
reason cannot be sustained.”
4 (2002) 3 SCC 598
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
21. The principles governing the grant of bail were reiterated by a
two judge Bench in Prasanta Kumar Sarkar v. Ashis Chatterjee5:
“9. … It is trite that this Court does not, normally, interfere with an
order passed by the High Court granting or rejecting bail to the
accused. However, it is equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a plethor a of
decisions of this Court on the point. It is well settled that, among
other circumstances, the factors to be borne in min d while
considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released
on bail;
(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant of
bail.
[internal citation omitted]”
Explicating the power of this Court to set aside an order granting
bail, this Court held:
“10. It is manifest that if the High Court does not advert to these
relevant considerations and mechanically grants bail, the said order
would suffer from the vice of non-application of mind, rendering it
to be illegal...”
22. We are constrained to observe that the orders passed by t he
High Court granting bail fail to pass muster under the law. They are
oblivious to, and innocent of, the nature and gravity of the alleged offences
5 (2010) 14 SCC 496
39
and to the severity of the punishment in the event of conviction. In Neeru
Yadav v. State of U.P.6, this Court has held that while applying the principle
of parity, the High Court cannot exercise its powers in a capricious manner
and has to consider the totality of circumstances before granti ng bail.
This Court observed:
“17. Coming to the case at hand, it is found that when a stand was
taken that the 2nd Respondent was a history sheeter, it was
imperative on the part of the High Court to scrutinize every aspect
and not capriciously record that the 2nd Respondent is entitled to
be admitted to bail on the ground of parity. It can be stated with
absolute certitude that it was not a case of parity and, there fore,
the impugned order clearly exposes the non-application of mind.
That apart, as a matter of fact it has been brought on record that
the 2nd Respondent has been charge sheeted in respect of number
of other heinous offences. The High Court has failed to take note
of the same. Therefore, the order has to pave the path of extinction,
for its approval by this Court would tantamount to travesty o f
justice, and accordingly we set it aside.”
23. Another aspect of the case which needs emphasis is the manner
in which the High Court has applied the principle of parity. By its two
orders both dated 21 December 2020, the High Court granted bail to
Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with
Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22
October 2020 on the ground (as the High Court recorded) that he was
“assigned similar role of armed with stick (sic)”. Again, bail was granted
to Vanraj Koli (A-16) on the ground that he was armed with a wooden
stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh
(A-13) who were armed with sticks had been granted bail. The H igh
Court has evidently misunderstood the central aspect of what is meant by
parity. Parity while granting bail must focus upon role of the accused.
Merely observing that another accused who was granted bail was armed
with a similar weapon is not sufficient to determine whether a case for the
grant of bail on the basis of parity has been established. In deciding the
aspect of parity, the role attached to the accused, their position in relation
to the incident and to the victims is of utmost importance. The Hi gh
Court has proceeded on the basis of parity on a simplistic assessment as
noted above, which again cannot pass muster under the law.
6 (2014) 16 SCC 508
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
24. The narration of facts in the earlier part of this judg ement
would indicate that on 22 October 2020, a Single Judge of the High Court
granted bail to Sidhdhrajsinh (A-13), The Single Judge noted that the
name of A-13 is shown in the FIR for the incident which took place on 9
May 2020. The circumstance which weighed with the Single Judge was
that the informant in the subsequent statement which was recorded
twenty-five days after the FIR on 3 June 2020, does not advert to overt
act which was attributed in the FIR; though the presence of A-13 is
shown, no specific role is attributed to him in the subsequent statement.
Observing that the details in regard to the chronology of eve nts which
took place on 9 May 2020 “is in effect substituted” in the su bsequent
statement dated 3 June 2020, the High Court held that it appears that A-
13 was roped in due to the pendency of previous proceedings and enmity
with the side of the informant. Holding that this was sufficient to grant
bail, the learned Judge observed:
“15. Learned Advocates appearing on behalf of the
respective parties do not press for further reasoned orde r.”
(emphasis supplied)
25. The order which was passed on 22 October 2020 in the case
of A-13 was relied upon, on grounds of parity, in the case of Pravin (A-
10) and Kheta (A-15), by orders of a Single Judge of the High Cour t,
dated 21 December 2020. In the case of Vishan (A-6), bail was granted
on 21 December 2020 by the Single Judge who had passed orders dated
22 October 2020 in the case of A-10 and A-15. The only reasons which
have been indicated in the order of the Single Judge is that bail was being
granted taking into consideration the facts of the case, the nature of the
allegations, gravity of offences and role attributed to the accused.
Thereafter, by an order dated 19 January 2021 bail was granted to Vanraj
(A-16) purely on the basis of parity. On 20 January 2021, the order granting
bail to Vanraj (A-16) was followed in the case of Dinesh (A-17) on the
ground of parity.
26. From the above conspectus of facts, it is evident that essentially
the only order which contains a semblance of reasoning is the order dated
22 October 2020 granting bail to A-13. As a matter of fact, the submissions
which have been made on behalf of the accused substantially dwell on
the same line of logic in justifying the grant of bail on the ground that in
the subsequent statement dated 3 June 2020 of the informant, the genesis
and details of the incident which took place on 9 May 2020 as elaborated
in the FIR have undergone a substantial change.
41
27. In granting bail to the six accused, the High Court has committed
a serious mistake by failing to recognize material aspect s of the case,
rendering the orders of the High Court vulnerable to assail on the ground
of perversity. The first circumstance which should have weighed with the
High Court but which has been glossed over is the seriousness and gravity
of the offences. The FIR which has been lodged on 9 May 2020 adverts
to the murder of five persons on the side of the informant in the course of
the incident as a result of which offences punishable under Sections 302,
143, 144, 147, 148, 149, 341, 384, 120B, 506(2) read with Section 34 of
the Indian Penal Code were alleged. This is apart from the invocation of
the provisions of Sections 25(1-b) A, 27 and 29 of the Arms Act and
Section 135 of the Gujarat Police Act. The FIR which was lodged on 9
May 2020 notes that the incident took place at 1:00 pm. A grou p of
persons from the side of the informant, including the deceased, were
returning home at about 1:00 pm. The genesis of the incident is that the
path of their vehicle was blocked both from the front and the r ear by
tractors of the accused. The FIR specifically refers to the presence of the
accused Vishan (A-6), Sidhdhrajsinh Bhagubha Vaghela (A-13), Vanraj
Karshan Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli (A-
10) and Dinesh Karshan Akhiyani (Koli) (A-17). It states that the accused
had all come to the scene of offence with pistols, dhariyas and knives and
that initially Vishan (A-6) and two others had fired from their rifles as a
result of which five persons fell to the ground. Some of these accused –
Vishan (A-6), Sidhdhrajsinh (A-13), Vanraj (A-16), Kheta (A-15), Pravin
(A-10) and Dinesh (A-17) are alleged to have assaulted with dhariyas and
lathis over the head and body of Akhabhai, Pethabhai, Amara, Lalji and
Vela. All of them were rushed to the Government Hospital where they
were pronounced dead.
28. Four days after the FIR was lodged by the informant on 9
May 2020, a cross FIR was lodged by Vishan (A-6). This FIR contains
a narration of the pre-existing dispute over land and to an incident which
had taken place on 7 May 2020 which was resolved with the intervention
of the community. The cross FIR dated 13 May 2020 stated that Vishan
(A-6) sent his nephew together with Akhabhai to the police stat ion to
retrieve his motorcycle. The cross FIR specifically states that the side of
the accused had decided to kill Akhabhai and in pursuance of this design
he proceeded in his vehicle together with his brother and some of the
other accused and tried to kill Akhabhai by dashing his car against him.
The translation of the actual intent in the cross FIR is questioned by Mr
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
Nikhil Goel by submitting that correctly translated from Gujarati, the intent
would be to assault and not to kill. Be that as it may, the cr oss FIR
indicates the presence of all these accused and of their being armed with
weapons to assault the deceased. A-6, in fact, states that in the course of
the incident which took place, he was assaulted on his hand with a dhariya.
The cross FIR contains a narration of how Akhabhai and the others tried
to run away from the scene but were way-laid and assaulted. The cross
FIR also then states that several women from the side of the accused
came to the scene of occurrence.
29. A reading of the cross FIR which was lodged by Vishanbhai (A-
6) on 13 May 2020 indicates:
(i) An intent on the part of the accused to launch an assault on
the deceased;
(ii) The manner in which their pre-meditated design was sought
to be achieved by assaulting Akhabhai and the other deceased
persons;
(iii) An effort was made by Akhabhai and the other deceased to
run away but this was prevented in the course of the assault;
and
(iv) The accused had come armed with weapons to execute their
intent.
30. In other words with the contents of the cross FIR as they
stand, it was impossible for any judicial mind, while adjudicating upon the
applications for the grant of bail, to gloss over:
(i) The presence of the accused at the scene of occurrence on
9 May 2020;
(ii) The accused being armed with weapons to accost Akhabhai
and the other persons accompanying him;
(iii) The intent to assault them; and
(iv) The actual incident in the course of which Akhabhai and four
other persons of his group were waylaid and assaulted,
resulting in five homicidal deaths.
31. The Post Mortem reports which have been produced on the
record indicate the extensive nature of the bodily injuries which were
sustained by each of the five deceased persons. It is true that in the FIR
dated 9 May 2020, it was alleged that the deceased were fired upon as a
result of which they fell to the ground whereas, in the statement dated 3
43
June 2020, it has been stated that the injuries were sustained as a result
of dhariyas and sticks. Whether the deaths occurred as a result of bullet
wounds or otherwise can make no difference on whether a case for the
grant of bail was made out once a plain reading of the cross FIR indicates
both the presence of the accused and the execution of their plan to assault
the side of the informant with the weapons which were in the possession
of the accused. The High Court in its first order dated 22 October 2020
was persuaded to grant bail on the specious ground that the details of the
incident as they appeared in the subsequent statement of the informant
dated 3 June 2020 are at variance with the FIR dated 9 May 2020. These
are matters of trial. The High Court has, however, clearly overlooked the
cross FIR dated 13 May 2020 lodged by A-6 and the implications of the
content of the FIR on the basic issue as to whether bail should be granted.
As a matter of fact, it is also important to note that the pr esence of
women on the side of the accused is a fact which is noted in the cross FIR
itself. Bail having been granted to A-18 to A-22 has not been the subject
matter of the challenge in these proceedings. Hence, it is not necessary to
dwell on that aspect any further. It is important for the purpose of
evaluating this batch of cases at the present stage to also note the invocation
of the provisions of the Section 149 of the Indian Penal Code.
32. Our analysis above would therefore lead to the conclusion that
there has been a manifest failure of the High Court to advert to material
circumstances, especially the narration of the incident as it appears in the
cross FIR which was lodged on 13 May 2020. Above all, the High Court
has completely ignored the gravity and seriousness of the offence which
resulted in five homicidal deaths. This is clearly a case where the orders
passed by the High Court suffered from a clear perversity.
33. There is another aspect of this batch of cases whic h it is
necessary to note. In the order of the High Court dated 22 October 2020
granting bail to Sidhdhrajsinh (A-13), there was a refe rence to the
submission of the Public Prosecutor to the criminal antecedents of A-13
bearing on previous FIRs registered against him in 2017 and 2019. This
aspect bearing on the criminal antecedents of A-13 has not been considered
in the reasons which have been adduced by the Single Judge. In Ash
Mohammad v. Shiv Raj Singh 7, this Court has held that criminal
antecedents of the accused must be weighed for the purpose of granting
bail. That apart, it is important to note that the ground on which A-13 was
7 (2012) 9 SCC 446
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
granted bail is that in the subsequent statement dated 3 June 2020, the
overt act which was attributed in the FIR was found to be missing. Having
said this, the learned Judge observed that the order shall not be treated
as a precedent to claim bail on the basis of parity in any other case.
34. We are left unimpressed with and disapprove of the above
observation of the Single Judge. Whether parity can be claimed by any
other accused on the basis of the order granting bail to A-13 ought not to
have been pre-judged by the Single Judge who was dealing only with the
application for the grant of bail to A-13. The observation that the grant of
bail to A-13 shall not be considered as a precedent for any other person
who is accused in the FIR on grounds of parity does not constitute judicially
appropriate reasoning. Whether an order granting a bail is a precedent on
grounds of parity is a matter for future adjudication if and whe n 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 a re
inappropriate and erroneous. Moreover, as observed above in para 23,
even while considering the ground of parity not only the weapon, but
individual role attributed to each accused must be considered. We have
dwelt on this aspect of the matter in order to ensure that the position in
law is corrected in terms as explained above. As we have noted earlier,
bail was thereafter granted to Pravin (A-10) and Kheta (A-15) by orders
dated 21 December 2020 on the ground of parity as claimed with the
order dated 22 October 2020. The Single Judge observed that the Additional
Public Prosecutor had not made any point of distinction. Subsequently,
parity was the basis on which bail was sought in the case of Vanraj (A-16)
who was granted bail on 19 January 2021. While granting bail, the Single
Judge observed that:
“the learned advocates appearing on behalf of the respective parties
do not press for further reasoned orders”
A similar observation is contained in the order dated 20 January
2021 of the Single Judge granting bail to Dinesh (A-17). Finally on this
aspect we would also advert to the order of the High Court date d 21
December 2020 granting bail to Vishan (A-6) which again contains a
statement that the “advocates appearing on behalf of the respective parties
do not press for a further reasoned order”.
45
35. We disapprove of the observations of the High Court in a
succession of orders in the present case recording that the Counsel for the
parties “do not press for a further reasoned order”. The grant of bail is a
matter which implicates the liberty of the accused, the inte rest 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 recor d 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 interes t. We must,
therefore, disapprove of the manner in which a succession of orders in
the present batch of cases has recorded that counsel for the “respective
parties do not press for further reasoned order”. If this is a euphemism
for not recording adequate reasons, this kind of a formula cannot shield
the order from judicial scrutiny.
36. Grant of bail under Section 439 of the CrPC is a matter involving
the exercise of judicial discretion. Judicial discretion in granting or refusing
bail – as in the case of any other discretion which is vested in a court as
a judicial institution – is not unstructured. The duty to record reasons is a
significant safeguard which ensures that the discretion which is entrusted
to the court is exercised in a judicious manner. The recording of reasons
in a judicial order ensures that the thought process underlying the order is
subject to scrutiny and that it meets objective standards of r eason and
justice. This Court in Chaman Lal v. State of U.P.8 in a similar vein has
held that an order of a High Court which does not contain reasons for
prima facie concluding that a bail should be granted is liable to be set
aside for non-application of mind. This Court observed:
8 (2004) 7 SCC 525
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
“8. Even on a cursory perusal the High Court’s order sho ws
complete non-application of mind. Though detailed examination of
the evidence and elaborate documentation of the merits of the case
is to be avoided by the Court while passing orders on bail
applications. Yet a court dealing with the bail application should be
satisfied, as to whether there is a prima facie case, but exhaustive
exploration of the merits of the case is not necessary. The cou rt
dealing with the application for bail is required to exercise its
discretion in a judicious manner and not as a matter of course.
9. There is a need to indicate in the order, reasons for prima facie
concluding why bail was being granted particularly where an accused
was charged of having committed a serious offence…”
37. We are also constrained to record our disapproval of the manner
in which the application for bail of Vishan (A-6) was disposed of. The
High Court sought to support its decision to grant bail by stating that it
had perused the material on record and was granting bail “ without
discussing the evidence in detail” taking into consideration:
(1) The facts of the case;
(2) The nature of allegations;
(3) Gravity of offences; and
(4) Role attributed to the accused.
As a matter of fact there is no discussion or analy sis of
circumstances at all. This lone sentence in the order of the Single Judge
leaves a Court before which the order granting bail is challenged,
completely without guidance on the considerations which weighed with
the High Court in granting bail. We appreciate that in deciding whether
or not to grant bail the High Court is not at a stage where it adjudicates
upon guilt. This is to be analyzed during the course of criminal trial where
evidence has been recorded. But surely, the order of the High Court
must indicate some reasons why the Court has either granted or denied
bail. The Sessions Judges in the present case have indicated their reasons
for the ultimate conclusion. This unfortunately has not been observed in
the order of the High Court dated 21 December 2020. Dealing wit h a
similar formulation as in the present case, this Court has hel d recently
held as follows in Sonu v. Sonu Yadav9:
9 Criminal Appeal No. 377 of 2021, decided on 5 April 2021
47
“11. In the earlier part of this judgment, we have extracte d the
lone sentence in the order of the High Court which is intended to
display some semblance of reasoning for justifying the gra nt of
bail. The sentence which we have extracted earlier contains an
omnibus amalgam of (i) “the entire facts and circumstances of the
case”; (ii) “submissions of learned Counsel for the parties”; (iii)
“the nature of offence”; (iv) “evidence”; and (v) “complicity of
accused”. This is followed by an observation that the “applicant
has made out a case for bail”, “without expressing any opinion on
the merits of the case”. This does not constitute the kind of reasoning
which is expected of a judicial order. The High Court cannot be
oblivious, in a case such as the present, of the seriousness of the
alleged offence, where a woman has met an unnatural end within
a year of marriage. The seriousness of the alleged offence has to
be evaluated in the backdrop of the allegation that she was being
harassed for dowry; and that a telephone call was received from
the accused in close-proximity to the time of death, making a
demand. There are specific allegations of harassment against the
accused on the ground of dowry. An order without reasons is
fundamentally contrary to the norms which guide the judicial
process. The administration of criminal justice by the High Court
cannot be reduced to a mantra containing a recitation of general
observations. That there has been a judicious application of mind
by the judge who is deciding an application under Section 439 of
the CrPC must emerge from the quality of the reasoning which is
embodied in the order granting bail. While the reasons may b e
brief, it is the quality of the reasons which matters the most. That
is because the reasons in a judicial order unravel the thought
process of a trained judicial mind. We are constrained to make
these observations because the reasons indicated in the judgment
of the High Court in this case are becoming increasingly familiar
in matters which come to this Court. It is time that such a practice
is discontinued and that the reasons in support of orders granting
bail comport with a judicial process which brings credibility to the
administration of criminal justice.”
38. What has been observed in the above extract equally applies
to the facts of the present case. There is no question now of ordering a
remand to the High Court in the case of Vishan (A-6) since the question
of bail has been argued fully before this Court. Moreover, the case of
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
Vishan (A-6) has been considered together with the entire batch of cases
in which bail has been granted- initially on 22 October 2020 in the case of
Sidhdharajsinh (A-13), which has been followed on the grounds of parity
in the case of the other accused.
39. The High Court has relied upon the decision of this Court in
Sanjay Chandra v. Central Bureau of Investigation 10. While
considering the grant of bail in certain cases arising out of the 2G Spectrum
Scam, this Court observed as follows:
“21. In bail applications, generally, it has been laid down from the
earliest times that the object of bail is to secure the appearance of
the accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is required to
ensure that an accused person will stand his trial when called upon.
The courts owe more than verbal respect to the principle tha t
punishment begins after conviction, and that every man is deemed
to be innocent until duly tried and duly found guilty.”
Elaborating further, the Court held
“22. From the earliest times, it was appreciated that detention in
custody pending completion of trial could be a cause of great
hardship. From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial to
secure their attendance at the trial but in such cases, “necessity”
is the operative test. In this country, it would be quite contrary to
the concept of personal liberty enshrined in the Constitution that
any person should be punished in respect of any matter, upon which,
he has not been convicted or that in any circumstances, he should
be deprived of his liberty upon only the belief that he will tamper
with the witnesses if left at liberty, save in the most extraordinary
circumstances.”
At the same time, the Court recognized in paragraph 24 of its
decision that:
“24. In the instant case, we have already noticed that the “pointing
finger of accusation” against the appellants is “the seriousness of
the charge”. The offences alleged are economic offences which
10 2012 (1) SCC 40
49
have resulted in loss to the State exchequer. Though, they contend
that there is a possibility of the appellants tampering with the
witnesses, they have not placed any material in support of t he
allegation. In our view, seriousness of the charge is, no doubt, one
of the relevant considerations while considering bail applications
but that is not the only test or the factor: the other factor that also
requires to be taken note of is the punishment that could be imposed
after trial and conviction, both under the Penal Code and the
Prevention of Corruption Act. Otherwise, if the former is the only
test, we would not be balancing the constitutional rights but rather
“recalibrating the scales of justice”.”
In Mahipal v. Rajesh Kumar Alias Polia11 this Court observed
as follows:
“16. The considerations that guide the power of an appellate court
in assessing the correctness of an order granting bail stand on a
different footing from an assessment of an application for the
cancellation of bail. The correctness of an order granting bail is
tested on the anvil of whether there was an improper or arbitrary
exercise of the discretion in the grant of bail. The test is whether
the order granting bail is perverse, illegal or unjustifie d. On the
other hand, an application for cancellation of bail is general ly
examined on the anvil of the existence of supervening circumstances
or violations of the conditions of bail by a person to whom bail has
been granted. In Neeru Yadav v. State ofU.P. [Neeru
Yadav v. State of U.P ., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)
527] , the accused was granted bail by the High Court [ Mitthan
Yadav v. State of U.P ., 2014 SCC OnLine All 16031] . In an appeal
against the order [ Mitthan Yadav v. State of U.P. , 2014 SCC
OnLine All 16031] of the High Court, a two-Judge Bench of this
Court surveyed the precedent on the principles that guide the grant
of bail. Dipak Misra, J. (as the learned Chief Justice then w as)
held: (Neeru Yadav case [Neeru Yadav v. State of U.P ., (2014)
16 SCC 508 : (2015) 3 SCC (Cri) 527] , SCC p. 513, para 12)
“12. … It is well settled in law that cancellation of bail after it
is granted because the accused has misconducted himself or
of some supervening circumstances warranting such
cancellation have occurred is in a different compart ment
11 (2020) 2 SCC 118
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
altogether than an order granting bail which is unjustified, illegal
and perverse. If in a case, the relevant factors which should
have been taken into consideration while dealing with the
application for bail have not been taken note of, or bail is founded
on irrelevant considerations, indisputably the superior court can
set aside the order of such a grant of bail. Such a case belongs
to a different category and is in a separate realm. While dealing
with a case of second nature, the Court does not dwell upon
the violation of conditions by the accused or the supervening
circumstances that have happened subsequently. It, on the
contrary, delves into the justifiability and the soundness of the
order passed by the Court.”
In Mahipal (supra), this Court outlined the standards governing
the setting aside of bail by this Court in the following terms:
“17. Where a court considering an application for bail fails to
consider relevant factors, an appellate court may justifiab ly set
aside the order granting bail. An appellate court is thus required to
consider whether the order granting bail suffers from a non-
application of mind or is not borne out from a prima facie view of
the evidence on record.”
These two standards were reiterated in a recent decision of this
Court in Prabhakar Tewari v. State of U.P.12.
40. The considerations which must weigh with the Court in granting
bail have been formulated in the decisions of this Court in Ram
Govind Upadhyay v. Sudarshan Singh13 and Prasanta Kumar
Sarkar v. Ashis Chatterjee14(noted earlier). These decisions as
well as the decision in Sanjay Chandra (supra) were adverted
to in a recent decision of a two judge Bench of this Court dated 19
March 2021 in The State of Kerala v. Mahesh15 where the
Court observed:
“22…All the relevant factors have to be weighed by the Court
considering an application for bail, including the gravity of the
offence, the evidence and material which prima facie show th e
involvement of applicant for bail in the offence alleged, the extent
12 (2020) 11 SCC 648
13 (2002) 3 SCC 598
14 (2010) 14 SCC 496
15 Criminal Appeal No 343 of 2021
51
of involvement of the applicant for bail, in the offence alleg ed,
possibility of the applicant accused absconding or othe rwise
defeating or delaying the course of justice, reasonable apprehension
of witnesses being threatened or influenced or of evidence being
tempered with, and danger to the safety of the victim (if alive), the
complainant, their relatives, friends or other witnesses….”
Similarly, the Court held that the grant of bail by the High Court
can be set aside, consistent with the precedents we have discussed above,
when such grant is based on non-application of mind or is innocent of the
relevant factors for such grant.
41. For the reasons which we have indicated above, we have come
to the conclusion that the orders granting bail to the respondent-accused
Vishan Heera Koli (A-6), Pravin Heera Koli (A-10), Sid hdhrajsinh
Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15), Vanraj Karshan
Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17) suffer from a
clear perversity. We accordingly allow these appeals and s et aside the
following orders of the High Court:
Sl No. Name of the
accused
Accused
No.
Date of order by the
High Court
SLP No.
1 Vishan Heera Koli 6 21 December 2020 790 of 2021
2 Pravin Heera Koli 10 21 December 2020 1246-47 of 2021
3 Sidhdhrajsinh
Bhagubha Vaghela
13 22 October 2020 1249 of 2021
4 Kheta Parbat Koli 15 21 December 2020 1246-47 of 2021
5 Vanraj Karshan
Koli
16 19 January 2021 1248 of 2021
6 Dinesh Karshan
Akhiyani (Koli)
17 20 January 2021 1245 of 2021
42. All the above accused are directed to surrender forthwith.
The copy of the order shall be forwarded to the Sessions Judge to secure
compliance forthwith.
43. Pending application(s), if any, stand disposed of.
Nidhi Jain Appeals allowed
RAMESH BHAV AN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]