RAMESH BHAVAN RATHOD versus VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR.

Citation: [2021] 7 S.C.R. 17 · Decided: 20-04-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

cites 5 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
17
RAMESH BHAVAN RATHOD
v.
VISHANBHAI HIRABHAI MAKWANA MAKWANA (KOLI) & ANR.
(Criminal Appeal No 422 of 2021)
APRIL 20, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973:
s. 439 – Special powers of High Court or Court of Session
regarding bail – On facts, six persons implicated in five homicidal
deaths – Grant of bail by High Court – Correctness of – Held: Nature of
the offence, its gravity is a circumstance which has an important bearing
on the grant of bail – On facts, while granting bail to the six accused,
the High Court committed 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 – High Court failed to look into the
seriousness and gravity of the offences – FIR lodged 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 Penal Code,
Arms Act and Gujarat Police Act, were alleged – FIR specifically refers
to the presence of the accused persons and that they had all come to the
scene of offence with weapons – 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 in their possession –
High Court overlooked the cross FIR and the implications of its content
– Thus, the order granting bail to accused persons having failed to pass
muster under the law, set aside.
s. 439 – Bail – Grant of – Application of principle of parity –
Held: 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 – Merely observing that another accused who was granted
bail was armed with a similar weapon is not sufficient, but individual
role attributed to each accused must be considered.
s. 439 – Grant of bail under – Recording of reasons – Held:
Grant of bail u/s. 439 is a matter involving the exercise of judicial
[2021] 7 S.C.R. 17
17
A
B
C
D
E
F
G
H
18
SUPREME COURT REPORTS
[2021] 7 S.C.R.
discretion – Judicial discretion in granting or refusing bail is not
unstructured – 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 – 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.
s. 439 – Bail – Grant of, by High Court – Order passed by the
Judge observing that the order granting bail to the concerned accused
not be treated as a precedent to claim bail on the basis of parity in any
other case – Correctness of – Held: Said observation is inappropriate
and erroneous – Whether parity can be claimed by any other accused on
the basis of the order granting bail to concerned accused ought not to
have been pre-judged by the Single Judge who was dealing only with
the application for the grant of bail to the accused concerned – Whether
an order granting bail is a precedent on grounds of parity is a matter
for future adjudication if and when bail application is moved on the
grounds of parity on behalf of the accused.
s. 439 – Bail – Grant of, by High Court – Observations of the
High Court in succession of orders that the counsel for the parties “do
not press for a further reasoned order” – Correctness of – Held:
Observations of the High Court is disapproved – Consent of parties
cannot obviate the duty of the High Court to apply a judicial mind and
indicate its reasons why it has either granted or refused bail – 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.
Allowing the appeals, the Court
HELD: 1.1 The first aspect of the case which stares in the
face is the singular absence in the judgment of the High Court to
the nature 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 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. The perversity lies in the failure of the High Court
to consider an important circumstance which has a bearin

Excerpt shown. Read the full judgment & AI analysis in Lexace.