Ramesh Bhavan Rathod Vs. Hirabhai Makwana Makwana (Koli)&Anr.

CITATION	AIR 2021 SUPREME COURT 2011, AIRONLINE 2021 SC 214
DATE OF JUDGMENT	20 April,2021
COURT	Supreme Court of India
APPELLANT	Ramesh Bhavan Rathod
RESPONDENT	Vishanbhai Hirabhai Makwana Makwana (Koli) & Anr.
BENCH	M R Shah, Dhananjaya Y Chandrachud

INTRODUCTION

In present case, a batch of 5 appeals arises in Supreme Court from orders of the High Court of Gujarat granting bail, under section 439 of the code of criminal procedure 1973, 26 persons who have been implicated in five homicidal deaths . These appeals were filed in Supreme Court against the order of the High Court of Gujarat granting bail on the principle of parity.

FACTS OF THE CASE

1. The  prayers in question stem from  opinions made by the High Court of Gujarat to grant bail to six  individualities involved in five cases of  sanguine deaths under Section 439 of the Code of Criminal Procedure 1973. An FIR, CR No 11993005200314, was lodged on May 9, 2020, at Police Station Aadesar, District East Kachchh – Gandhidham, citing offenses under  colorful sections of the Indian Penal Code and other Acts. Ramesh Bhavan Rathod, the complainant, filed the FIR following an incident in  vill Hamirpur,  touched off by a land  disagreement that redounded in five murders. 
2. The person who reported the incident claimed that he, along with his family Pethabhai, went to their  ranch at 600 am. latterly, at 1 pm, the  snitch, Pethabhai, and his family- in- law Akhabhai were on their way back home in a Scorpio with five other  individualities. When they reached the untarred road passing through the  granges of Lakha Hira Koli and Kanji Bijal Koli, these two  individualities, along with Lakha Hira Koli,  surfaced. Lakha Koli  designedly hit his tractor into the front of the Scorpio. Kanji Koli  deposited his tractor behind the Scorpio, blocking it, and another Sumo vehicle pulled up behind the Scorpio. The Scorpio and its  inhabitants were trapped.  

3. Among the twenty- two  indicted 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  postmortem examination was conducted on 10 May 2020. A panchnama is  contended to have been conducted at the scene of offence on the coming day, i.e. on 10 May 2020, performing in the recovery of, inter alia, two country made  ordnance, two indigenous  fake  ordnance, four dhariyas and one  rustic  stick. 

 4. Vishan was nabbed on 18 May 2020. The  snitch  handed another statement in the original FIR dated 9 May 2020, and this statement was recorded on 3 June 2020. Following the  disquisition, the  probing officer filed a charge-  distance against Vishan and the other twenty- two  indicted. On 31 August 2020, Vishan’s plea for interim bail on medical grounds was turned down by the Sessions Judge, Bhachau, Kachchh. The judge noted that the  indicted had submitted  fake documents to secure bail. An  operation for regular bail under Section 439 of the CrPC was also denied by the fresh Sessions Judge, Bhachau, on 4 December 2020.  5. Among the twenty- two  indicted, who are named in the charge-  distance, these proceedings arise out of the  operations for bail which were moved before the High Court on behalf of the six persons  videlicet Vishan Heera Koli, Pravin Heera Koli, Sidhdhrajsinh Bhagubha Vaghela, Kheta Parbat Koli, Vanraj Karshan Koli, Dinesh Karshan Akhiyani( Koli)- indictedno. 6- indictedno. 10- indictedno. 13- indictedno. 15- indictedno. 16- indictedno. 1 independently. At this stage, it’s necessary to note thatA-10 andA-15 were both granted bail on 21 December 2020 on the base of  equality claimed on the base of the order dated 22 October 2020 granting bail toA-13. The orders dated 19 January 2021 granting bail toA-16 and toA-17 on 20 January 2021 are also grounded on  equality. 

 6. The main  indicted, Vishan(A-6) was granted bail on 21 December 2020. The allegations against all the  indicted in the present batch of  prayers arise out of the same incident. All the  prayers have hence been heard together. 

 7.Mr. Vinay Navare, elderly Counsel, andMs. Jaikriti S Jadeja, Counsel supported the  prayers filed by the  snitch.Mr. Nikhil Goel, Counsel represented the replier-  indicted.Mr. Aniruddha P Mayee appeared on behalf of the State of Gujarat in response to the notice issued on 5 February 2021.

ISSUES RAISED

1. If appeal maintainable or not?
2. If the bail granted to the accused by the High Court was correct?
3. If the principle of parity was applied appropriately by the High Court?
4.  If consent of parties can obviate the duty of the high court to indicate its reasons why it has either granted or refused bail?

CONTENTIONS OF APPEALENT

1.  The cross FIR filed by Vishan (A-6) on 13 May 2020 suggests that an incident had occurred on 9 May 2020. In the course of the incident, five homicidal deaths occurred on the informant’s side as per the FIR dated 9 May 2020. 
2. The cross FIR lodged on 13 May 2020 includes references to the accused being armed with weapons and having premeditated the ambush and assault on the informant’s side.
3. The accused carried out the attack while the deceased were trying to flee after their vehicle was surrounded by two tractors belonging to the accused’s group.
4. The involvement of the accused and their actions are clearly outlined in both the initial FIR and the subsequent cross FIR filed on 13 May 2020 by Vishan (A-6). The cross FIR, which presents the accused’s perspective, indicates that they were the ones initiating the aggression. Whether the five deaths resulted from firearm injuries (as mentioned in the FIR dated 9 May 2020) or other causes (as stated in the recorded statement on 3 June 2020) is not crucial at this point. The accused’s presence, their premeditated actions, the attack on the informant’s group, and the resulting five deaths that triggered the incident should be adequate grounds to deny bail.
5. Based on what has been argued, it is claimed that the High Court made a grave mistake by granting bail initially on 22 October 2020 and then by following the previous decision based on similarity. Furthermore, it is contended that the bail granted to Vishan (A-6), the main accused, on 21 December 2020 was devoid of any rationale. It was asserted that when granting bail, the Chief Justice simply mentioned that the Advocates did not request a more detailed order, which is considered contrary to criminal jurisprudence. When the High Court exercises its jurisdiction under Section 439, it is mandated to evaluate the situation objectively and provide reasons for the bail decision.   
6. It was argued that simply stating that the Counsel for the parties did not push for “a further reasoned order” cannot excuse this duty.

CONTENTIONS OF REPONDENT

 Mr. Nikhil Goel, the knowledgeable Counsel representing the accused, has backed the High Court’s bail orders with the following points: 

1. The FIR from the incident on 9 May 2020 involves 22 individuals;
2. Accused 18-22, who are women, were granted bail without challenge; 
3. Currently, eleven accused individuals are still detained, with eight of them accused of using sharp-edged weapons.
4. The charge sheet filed after the investigation lists 110 witnesses; A charge sheet has also been submitted in the cross-FIR; 
5.  A physical altercation occurred during the incident on 9 May 2020, leading to injuries on the accused side and five fatalities on the informant’s side.
6.  The original account of the incident in the FIR filed on 9 May 2020 underwent significant changes in the informant’s statement recorded on 3 June 2020; 
7.  The FIR did not mention a physical altercation between the two groups or the injuries sustained by the accused; 
8.  The post-mortem reports from 10 May 2020 contradict the claim that the deaths were due to gunshot wounds; 
9.  The informant’s statement on 3 June 2020 aimed to align the weapon-related allegations in the FIR with the post-mortem reports, indicating the use of sharp-edged weapons. The FIR alleges that five individuals from the informant’s side were shot and found on the property, which contradicts the post-mortem reports showing no gunshot wounds; and 
10.  The narrative of the incident was modified in the statement given on 3 June 2020, replacing the earlier mention of gunshot injuries with injuries from sharp-edged weapons and an attempted use of firearms.

JUDGEMENT

The Supreme Court invalidated the High Court’s judgment, emphasizing that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P., this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. 

When considering parity in granting bail, it’s essential to focus on the specific role of each accused individual. Simply pointing out that another accused who received bail had a similar weapon is not enough to justify granting bail based on parity. The crucial factor in determining parity is the role played by each accused, their involvement in the incident, and their relationship to the victims. These aspects are of utmost significance in deciding whether bail should be granted based on parity.It was held that in granting bail to the six accused, the High Court has committed a serious mistake by failing to recognize material aspects of the case, rendering the orders of the High Court vulnerable to assail on the ground of perversity. 

The High Court had ultimately directed that all the aforementioned accused surrender without delay. A copy of the order was to be forwarded to the Sessions Judge for immediate compliance. Any pending application(s), if existing, were considered disposed of.

ANALYSIS

The grant of bail under Section 439 of the CrPC is a decision that involves the exercise of judicial discretion. This discretion, like any other vested in a court, is not arbitrary. It is crucial for the court to provide reasons for its decision, as this serves as a vital safeguard to ensure that the discretion is used judiciously. By recording reasons in a judicial order, the thought process behind the decision becomes transparent and subject to scrutiny, ensuring that it aligns with objective standards of reason and justice. The decision to release an accused person on bail is a critical issue that affects the individual’s freedom, the state’s interests, and the rights of crime victims in ensuring a fair legal process. It is widely accepted that when determining bail, neither the High Court nor the session court, when handling a petition under section 439 of the CrPC, will extensively review the case’s details as a full criminal trial is yet to occur. However, the court that approves bail must still fulfill its responsibility to carefully consider the matter and provide rationale, even if it is concise, to determine the appropriateness of granting bail. Indeed, the agreement between the parties does not exempt the High Court from its obligation to  clarify the reasons for either granting or denying bail.

Conclusion 

The Supreme Court overturned the High Court’s decision, stating that the bail orders issued by the High Court do not meet the legal standards. The High Court seemed unaware of the seriousness of the alleged crimes and the potential punishment upon conviction. It’s widely understood that when deciding on bail, neither the High Court nor the session court, in cases under section 439 of the CrPC, will extensively review the case details as a full criminal trial is yet to take place. However, the court granting bail still has a responsibility to carefully consider the matter and provide reasoning, even if it’s concise, to determine the appropriateness of granting bail. Even if there’s an agreement between the parties, the High Court is not exempt from clarifying the reasons for either granting or denying bail.

REFERENCES

1. SCC Online
2. https://indiankanoon.org/doc/41350772/ 
3. https://www.casemine.com/judgement/in/661af967066d194da412fe48 

This article is written by Dilpreet Kaur,7^th Semester,,Kanoria School of Law for Women, Jaipur.

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