Supreme Court SC sets aside bail given to 6 murder accused,...

SC sets aside bail given to 6 murder accused, criticises Gujarat HC verdict

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New Delhi, Apr 21 (ILNS) The Supreme Court on Tuesday set aside the bail given to six persons involved in the heinous crime of five homicidal deaths, saying that the order of the Gujarat High Court in granting bail to the accused on parity suffers from a clear ‘perversity’.

The Division Bench of Justice DY Chandrachud and Justice MR Shah set aside the Gujarat High Court order, wherein the six persons were granted bail on the grounds of parity. They were implicated in five homicidal deaths and subsequently charged for murder and various other Sections of IPC, the Arms Act and Section 135 of the Gujarat Police Act. 

The Supreme Court came down heavily on the abrupt observations and ‘perverse’ order of the Gujarat High Court, while releasing the six accused persons in utmost haste, by overlooking the nature and gravity of the crime. 

“The High Court has evidently misconceived 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,” said the apex court. 

“We are constrained to observe 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,” the SC said.

The apex court emphasised on the priority to be accorded to the nature of crime as a pre-requisite before granting bail to the accused, as laid down in previous judgements. It sets out the following factors to be kept in mind before granting bail under heinous crimes.

“While granting bail, the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

“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.

“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.

“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,” it added.

The case pertains to an FIR lodged on May 9, 2020 at the Aadesar, District East Kachchh, Gandhidham Police Station, for commission of offences charged under various Sections of IPC, including criminal conspiracy, murder, unlawful assembly, intimidation; Sections 25, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act.

It was alleged that there was a land dispute that led to the death of five persons. The complainant said that he, along with his deceased brother Pethabhai, left for their farm at around 0600 hrs. At 1300 hrs, the complainant, Pethabhai and his brother-in-law Akhabhai were returning home in a car with five other persons.

When their vehicle reached the untarred road passing through the farm of Lakha Hira Koli and Kanji Bijal Koli, the two persons came out along with Lakha Hira Koli. Lakha dashed his tractor on the front portion of their vehicle, while Kanji parked his tractor on the rear side of their car, behind which another Sumo came to be stationed.

The accused attacked Vishan Heera Koli, Pravin Heera Koli, Sidhdhrajsinh Bhagubha Vaghela, Kheta Parbat Koli, Vanraj Karshan Koli and Dinesh Karshan Akhiyani (Koli) with lathis, sticks, dhariyas and rifles, leading to their death. Police carried out the Panchnama on May 10, 2020, resulting in the recovery of wooden sticks, two illegal guns, two country-made guns, and four dhariya.

In Neeru Yadav vs State of UP (2014) 6SCC 508, the apex court 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.

Among the 22 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

The apex court also noted the loophole in the High Court judgement, in which the Single Judge of the Gujarat High Court overlooked the criminal antecedents of Sidhdhrajsingh Vaghela, against whom two FIRs had already been lodged and this facet was overlooked by the High Court, while considering bail.

It said, “Coming to the case at hand, it is found that when a stand was taken that the second Respondent was a history sheeter, it was imperative on part of the High Court to scrutinise every aspect and not capriciously record that the second
Respondent was 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 therefore, the order clearly exposes the non-application of mind. That apart, as a matter of fact, it has been brought on record that the second 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 of justice and accordingly, we set it aside.”

The Supreme Court criticised the order, saying that there was a callous approach in granting bail to six accused persons in such heinous crimes, and held “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”.

The apex court emphasized on the priority to be accorded to the nature of crime as a prerequisite before granting bail to accused persons as laid down in Ram Govind Upadhyay vs Sudharshan Singh (2002) 3 SCC 598. It sets out the following factors to be kept in mind before granting bail under heinous crimes:

“(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity 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.” ILNS\KY\SJ\SNG\RJ

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