Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B,506(2)and 34of the Indian Penal Code – Sections25(1–b) A, 27 and 29of the Arms Act – Section 135 of the Gujarat Police Act – Section 439 of the Code of Criminal Procedure 1973 – 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.
Section 439 of the Code of Criminal Procedure 1973 – The nature of the offence is a circumstance 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.
Section 439 of the Code of Criminal Procedure 1973 – 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.
Parity – 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.
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 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 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 that 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 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 the 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 Polia 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 unjustified. On the other hand, an application for cancellation of bail is generally 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 Yadavv.State of U.P.[Neeru Yadavv.State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , the accused was granted bail by the High Court [Mitthan Yadavv.State of U.P., 2014 SCC OnLine All 16031] . In an appeal against the order [Mitthan Yadavv.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 was) held: (Neeru Yadav case[Neeru Yadavv.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 compartment 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 justifiably 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 Tewariv. State of U.P.
40 The considerations which must weigh with the Court in granting bail have been formulated in the decisions of this Court in Ram Govind Upadhyayv. Sudarshan Singh and Prasanta Kumar Sarkar v.Ashis Chatterjee (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 Keralav.Mahesh 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 the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant accused absconding or otherwise 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.
41For 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), Sidhdhrajsinh 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 set aside the following orders of the High Court:
Sl No. Name of the accused Accused No. Date of order by SLP No.
the High Court
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 13 22 October 2020 1249
4 Kheta Parbat Koli 15 21 December 2020 1246–47
5 Vanraj Karshan Koli 16 19 January 2021 1248 of 2021
6 Dinesh Karshan Akhiyani 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.
[Dr Dhananjaya Y Chandrachud]
[M R Shah]
April 20, 2021