State Of Gujarat vs Minajbhai Ranzalali Patel on 18 July, 2018

[Cites 45, Cited by 2]

Gujarat High Court

State Of Gujarat vs Minajbhai Ranzalali Patel on 18 July, 2018

Bench: Sonia Gokani

       R/CR.MA/6480/2017                            ORDER



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/CRIMINAL MISC.APPLICATION NO. 6480 of 2017
                            With
         R/CRIMINAL MISC.APPLICATION NO. 6481 of 2017
                            With
         R/CRIMINAL MISC.APPLICATION NO. 6482 of 2017
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                           STATE OF GUJARAT
                                 Versus
                       MINAJBHAI RANZALALI PATEL
==========================================================
Appearance:
MR. L.R. POOJARI, APP (2) for the PETITIONER(s) No. 1
MR. S.V. RAJU, LEARNED SENIOR ADVOCATE WITH MR. BHADRISH S.
RAJU WITH MR. NIMIT Y SHUKLA(8338) FOR THE RESPONDENT(S) NO.
1
SAMTA R GODIWALA(8898) for the RESPONDENT(s) No. 1
==========================================================
 CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

                             Date : 18/07/2018

                           COMMON ORAL ORDER

1. All these applications have been moved by the State questioning the orders passed by the learned 7th Additional Sessions Judge, Bhavnagar on 13.01.2017, granting regular bail to the respondents - accused, in connection with the first information report being IC.R. No. 79 of 2016 for the offences punishable under sections 302, 307, 34, 143, 147, 148, 149, 120 (B) and 337 of the Indian Penal Code and Section 135 of the Gujarat Police Act and Sections 25(1)B and 27(2) of Page 1 of 58 R/CR.MA/6480/2017 ORDER the Arms Act.

2.It is the case of the prosecution that a first information report came to be lodged by one Nilamben contending that her brothers, viz. Ali Hussain and Abbasbhai Pyarali and father Pyarali Madhwani have been assaulted with sword, sickle, bill hook, gupti and shot fired with the revolver by the present applicants and others, and therefore, three of them died, due to the injury caused by the applicants. The complainant's nephew Mehndiraja Muhammadali sustained a serious injury. This has happened due to grievances and grudges between the applicants and complainant.

2.1 It is the case of the prosecution that five years before the accused - respondents requested to hide their weapons in the old house of the deceased Pyarali, which he resisted and that initiated dispute between the two sides. It is further their case that Page 2 of 58 R/CR.MA/6480/2017 ORDER on 09.10.2016, the complainant, her sister and sisterinlaw went to attend Majlish at around 7 o'clock in the evening. When women folks of the respondents drove them away and once again at 10 o'clock in the night when they went for Majlish, they were driven out. Respondents accused were resisting the move on the part of the deceased's family to attend Majlish at Jamatkhana on the ground that the victims were outcast by community. According to the complainant, the past grudges and grudges of their being from Daudi vohra community and the respondents being Muslim, also was the ground for such animosity.

3. Chargesheet came to be filed on 29.12.2016 and thereafter, the case was committed to the court of Sessions being Sessions Case No. 1 of 2017, which is presently pending before the court of the learned 6th Additional Sessions Judge, Mahuva.

4.The Investigating Officer had resisted the Page 3 of 58 R/CR.MA/6480/2017 ORDER bail applications moved by the present applicants by a detailed affidavit before the court concerned. However, the court on the ground of principle of parity had exercised its discretion and granted bail to the present applicants and others as one of the aged accused was given regular bail by this court.

5.The prosecution is, therefore, before this court on the ground that the charges against all the accused are very serious. Three persons have been killed in the incident in question and the case of the prosecution has been supported by the eyewitnesses who have not only narrated the incident in detail, but have described the role of each one with the lethal weapon they held at the time of incident.

6.The prosecution has challenged the said order on two counts, i.e. firstly, on merits for grant on irrelevant considerations i.e. on Page 4 of 58 R/CR.MA/6480/2017 ORDER applying principle of parity, and secondly, for being gravely deleterious to the course of justice. The request made for cancellation of bail is being examined in this backdrop of facts.

7. This court has heard learned Additional Public Prosecutor Mr. L.R. Poojari for the applicant State and Mr. S.V. Raju, learned Senior Advocate with Mr. Bhadrish S. Raju with Mr. Nimit Y. Shukla for the respondents accused, at length.

8. It is vehemently urged by the learned Additional Public Prosecutor that the role played by the accused is made very clear from various documentary evidences adduced by way of the chargesheet. Even before the trial court, there has been categorical evidence clearly involving prima facie the respondents herein and yet, the trial court has wrongly applied the principle of parity to grant bail to the respondents in such serious matter. It Page 5 of 58 R/CR.MA/6480/2017 ORDER is further urged that such an order is based on the order dated 19.12.2016 passed by this court in case of coaccused Shabbirali Noormohammad Virani, while dealing with Criminal Misc. Application No. 32240 of 2016, whereby the coordinate bench granted regular bail to the coaccused. It is the say of learned APP that such application of principle of parity is wholly erroneous and based on incorrect understanding of the order. Moreover, the applicants being headstrong are sure to thwart the course of justice. The learned APP urges that the offence is registered against one of the accused for having threatened the witnesses who also have approached this Court for requisite protection. He, therefore, urges that under no circumstances, the trial court could have considered the plea of accused for grant of bail.

9.This application is being resisted strongly Page 6 of 58 R/CR.MA/6480/2017 ORDER by the learned Senior Advocate Mr. S.V. Raju, learned advocate Mr. B.S. Raju with learned advocate Mr. Nimit Shukla, appearing for the respondents accused. It is urged by the learned Senior Advocate that, this court has not granted regular bail only because co accused was a senior citizen and as his role is identical to the role attributed to the present applicants as per the papers of the chargesheet, parity would apply. Moreover, the grant of regular bail to the coaccused has not been challenged by the State before the Apex Court, on the contrary, the prosecution also had agreed not to assign reasons so far as earlier application for bail was concerned. That being the case, it is not for the prosecution to challenge the order of grant of bail to other coaccused. It is further argued that conditions which have been laid down over the period of time are far more stringent and they are supported by cogent reasons, this court need not Page 7 of 58 R/CR.MA/6480/2017 ORDER interfere and cancel the bail once granted. It is also the case of the respondents that the court directed during the pendency of this application, not to enter the revenue limits of District Bhavnagar, which also is duly complied.

9.1. Reliance is placed on the version of the witnesses to indicate that weapons used by all the three accused - respondents who are before this court had the sharp cutting weapons and the coaccused Shabbir Virani, who was granted bail by the High Court also had sharp cutting weapon in his hands and hence, the principle of parity would surely have a dominant role.

9.2. Reliance is also made on the decision of the Apex Court rendered in Bhagirathsinh Mahipatsingh Jadeja v. State of Gujarat, reported in (1984) 1 SCC 284, wherein the Apex Court has held that very Page 8 of 58 R/CR.MA/6480/2017 ORDER cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. The learned advocate has also relied upon the decision of the Apex Court rendered in a case of Dolat Ram and others v. State of Haryana, reported in (1995) 1 SCC 349, wherein, the Apex Court has held that parameters for rejection of bail in a nonbailable case at the initial stage and the cancellation of bail so granted, being different, they shall have to be considered and dealt with on different basis and bail once granted should not be cancelled in a mechanical manner without considering any supervening circumstances. He has also relied upon the decisions rendered (i) in the case of Ramesh Cahnder Singh v. High Court of Allahabad and Anr. reported in AIR 2007 SC (SUPP) 88, (ii) in the case of Aamer Yunus Bhavnagri v. State of Gujarat reported in 2002 (2) GHJ 884 and (iii) in the case of Page 9 of 58 R/CR.MA/6480/2017 ORDER Dadubha Bhikhubhai Jadeja v. State of Gujarat reported in 1990 GLT 206. 9.3. It is reiteratively urged that, the case of the present three respondents had been rightly equated with that of Shabbirali Virani, considering their role rightly and now it does not lie in the mouth of the State to question such grant of bail, when the State itself had not insisted for any reasoned order, so far as the grant of bail to Shabbirali Virani is concerned. He has further relied upon a decision rendered in the case of Kanwar Singh Meena v. State of Rajasthan and another reported in (2012) 12 SCC 180.

10. Learned Additional Public Prosecutor Mr. L.R. Poojari, appearing for the applicant State has strongly resisted, in rejoinder the submissions made by the learned senior advocate appearing for the respondents - Page 10 of 58

R/CR.MA/6480/2017 ORDER accused and submitted that so far as Shabbirali Virani is concerned, he is alleged to have sharp cutting weapon, but there was no specific weapon in his hand, as per the version of the complainant. Moreover, whenever principle of parity is to apply, the Court concerned shall have to regard the well laid down principle of parity, but, in the instant case, the principle of parity could not have been applied by the court to grant regular bail. Shabbirali Virani was 67 years of age and it is a common practice, where the State is not desirous of any order to be followed by the trial court, the request is made to the High Court not to grant the reasons, so that the same does not adversely affect the stand of the prosecution in case of other accused.

11. Having heard thus learned advocates on both the sides and on thoughtfully considering the material on record, at the Page 11 of 58 R/CR.MA/6480/2017 ORDER outset, the principles of grant of bail deserve consideration before this court considers also the grounds of cancellation of bail, once granted.

12. The Apex Court while considering recent decision of Virupakshappa Gouda and another v. State of Karnataka and another reported in (2017) 5 SCC 406 has laid down the parameters for grant of bail. Relevant paragraphs of the said judgment read as under:

"14. Be it noted, though the aforesaid passages have their relevance but the same cannot be made applicable in each and every case for grant of bail. In the said case, the accusedAppellant was facing trial for the offences Under Sections 420B, 468, 471 and 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Thus, the factual matrix was quite different. That apart, it depends upon the nature of the crime and the manner in which it is committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field.

15. The court has to keep in mind what has Page 12 of 58 R/CR.MA/6480/2017 ORDER been stated in Chaman Lal v. State of U.P. and Anr. The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr., it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage:

9.... among other circumstances, the factors which are to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to be believed 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.

16. In Central Bureau of Investigation v. V. Vijay Sai Reddy, the Court had reiterated the principle by observing thus:

Page 13 of 58

R/CR.MA/6480/2017 ORDER "34.While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the Accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the Accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the Accused beyond reasonable doubt."

17. From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav v. State of Uttar Pradesh and Anr., wherein the Court setting aside an order granting bail observed:

"16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd Respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated Page 14 of 58 R/CR.MA/6480/2017 ORDER further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to Rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."

18. In this context what has been stated by a threeJudge bench in Dinesh M.N. Page 15 of 58 R/CR.MA/6480/2017 ORDER (S.P.) v. State of Gujarat is quite instructive. In the said case, the Court has held that where the Court admits the Accused to bail by taking into consideration irrelevant materials and keeping out of consideration the relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order.

19. In the instant case, as is demonstrable, the learned trial Judge has not been guided by the established parameters for grant of bail. He has not kept himself alive to the fact that twice the bail applications had been rejected and the matter had travelled to this Court. Once this Court has declined to enlarge the Appellants on bail, endeavours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety call for axing of the order."

13. In the decision of the Anil Kumar Yadav v. State (NCT of Delhi) and another reported in (2018) 12 SCC 129, Hon'ble the Apex Court has held and observed what is the duty of the Court while considering the question of grant of bail. Para32 of the said judgment would deserve reproduction as under:

"32......... The court while granting bail should exercise its discretion in a judicious manner. Of course, once discretion is exercised by the Sessions Court to grant bail on consideration of Page 16 of 58 R/CR.MA/6480/2017 ORDER relevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity. While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the Accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exercise of discretion. The materials available on record prima facie indicating the involvement of the Accused, possibility of Accused tampering with witnesses and the gravity of the crime were not kept in view by the Sessions Court. Since the Sessions Court granted bail to the Appellants on irrelevant considerations and the same suffered from serious infirmity, the High Court rightly set aside the order of grant of bail to the Accused. The impugned orders do not suffer from any infirmity warranting interference."

14. The principle of cancellation of bail would also deserve consideration before adverting to the factual matrix. A very well laid down decision rendered in the case of Bhagirathsinh Jadeja (supra) deserves consideration which is one of the landmark judgments where the Apex Court has detailed the parameters which are necessary to be Page 17 of 58 R/CR.MA/6480/2017 ORDER considered for cancellation of bail. Relevant Paragraphs of the said decision in the case of Bhagirathsinh Jadeja (supra) are profitably reproduced herein under:

"5. It appears that the State of Gujarat filed Miscellaneous Criminal Application No. 1724 of 1983 in the High Court of Gujarat seeking cancellation of the order granting bail to the appellant. A learned single judge of the High Court held that once a prima facie case is established the learned Sessions Judge ought to have taken into consideration the nature and gravity of the circumstances in which the offence is committed. The charge against the appellant is that he has committed an offence punishable under Sec. 307, I. P. C. and Section 135 of the Bombay Police Act and even on the date of hearing of this appeal before us on November 18, 1983, the Court was informed that the victim is alive and at present there is no danger to his life. Nearly 3 months have rolled by from the date of the offence. We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by Page 18 of 58 R/CR.MA/6480/2017 ORDER tampering with evidence. We would have certainly overlooked this aspect of the matter if the approach of the learned judge was otherwise one which would commend to us. It however appears that the learned judge was impressed by some of the most irrelevant considerations which prima facie emerge from the following observations of the learned Judge which permeates his whole order running into about 13 pages. Says the learned Judge :

"The learned Judge ought to have seen the fact that the helpless victim had gone to the hospital for preoperation checkup. He was a leading social and political worker. He was an active worker and Secretary of "Gundagiri Nivaran Samiti" which had raised a campaign against the atrocities allegedly having been committed by the Rajputs of Girasiya community. Admittedly the respondent is Girasiya and the complainant who was an active worker and Secretary of Gundagiri Nivaran Samiti had become a victim at the hands of the respondent. The learned Judge ought to have taken into consideration the material fact that the incident had taken place in the premises of the Hospital which may terrorize a number of sick persons who might be getting treatment in the hospital."

At another place, the learned Judge has observed that the learned Sessions Judge has ignored the fact that a social and political worker was attacked in the hospital premises with a knife having 9"

blade and as many as 11 injuries were caused to helpless victim.

xxx xxx xxx

7. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Page 19 of 58 R/CR.MA/6480/2017 ORDER Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court"

15. Yet another decision rendered in the case of Dolat Ram (supra) is concerned, the Apex Court has laid down the parameters for the rejection of bail in nonbailable offence and cancellation of bail to hold that the Page 20 of 58 R/CR.MA/6480/2017 ORDER basis of both would differ. Apt would be to reproduce the relevant paragraphs of the case of Dolat Ram (supra) as under:

"3. It appears to us that whereas the learned Additional Sessions Judge was not justified in observing in the last paragraph of his order while granting anticipatory bail "it appears that possible these accused - appellants have been roped in falsely", at that initial stage, when possibly the investigation was not even completed let alone, any evidence has been led at the trial, the High Court also fell in error in cancelling the anticipatory bail granted to the appellants for the reasons, which have been extracted by us above. The learned Additional Sessions Judge had noticed that even according to the statement in the FIR, the appellants were living separately from the deceased and her husband and that the factum of separate residence was also supported by the ration card. These considerations were relevant considerations for dealing with an application for grant of anticipatory bail.

4. Rejection of bail in a nonbailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are:

interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any Page 21 of 58 R/CR.MA/6480/2017 ORDER manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

16. Thus, it is quite clear that from the ratio mentioned hereinabove that the courts should not ordinarily cancel the bail once granted much less in a mechanical manner without there being cogent and overwhelming circumstances so also on considering whether any supervening circumstances exist rendering it no longer conducive to a fair trial to allow accused to retain his freedom by enjoying concession of bail during trial. The personal liberty being a very important aspect, there needs to exist very cogent and overwhelming circumstances for the court to cancel the bail, once granted. Any attempt on the part of the person who has been enlarged Page 22 of 58 R/CR.MA/6480/2017 ORDER on bail in whose favour the discretion is granted and there is a likelihood of his tampering with evidence or thwarting the course of justice, that conduct would entitle the court to cancel the bail.

17. Reference would be also needed at this stage decision rendered in the case of Kanwar Singh Meena v. State of Rajasthan and another(supra), the Apex Court has held that the High Court and the Sessions Court are guided by the same considerations while granting the bail, i.e. the gravity of the crime, the character of evidence, position and status of the accused with reference to victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds as are broadly required to be taken into Page 23 of 58 R/CR.MA/6480/2017 ORDER consideration. Of course, the court must not undertake meticulous examination of the evidence collected by the police at that stage.

In the very decision, the Apex Court, while considering the issue of cancellation of bail under Section 439 (2) of the Code of Criminal procedure has held and observed that the primary considerations which should weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. Over and above that the High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account Page 24 of 58 R/CR.MA/6480/2017 ORDER irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Since such orders are against the well recognized principles underlying the power to grant bail.

The Apex Court added that such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society.

Page 25 of 58

R/CR.MA/6480/2017 ORDER In the matter before the Apex Court, the High Court had released the accused on bail ignoring various averments made in the complaint and statement recorded under Section 164 the Code of Criminal Procedure which had established, prima facie, the involvement of the accused in the crime in question. There were hardly any reasons carried in the order of the High Court while releasing a person on bail, the Apex Court cancelled the bail by holding that the High Court has exercised its discretionary power in an arbitrary and casual manner.

18. The Apex Court also made reference of the decisions of Gurcharan Singh v. State (Delhi Admn.)reported in (1978) 1 SCC 118 and Puran v. Rambilas reported in (2001) 6 SCC 338, so also the decision of Dinesh M.N. (S.P.) v. State of Gujarat reported in (2008) 5 SCC 66, the Kanwar Singh Meena (supra) the Apex Page 26 of 58 R/CR.MA/6480/2017 ORDER Court has held in paras 5 to 10 read as under:

"5. Cancellation of bail is a serious matter. Bail once granted can be cancelled only in the circumstances and for the reasons which have been clearly stated by this court in a catena of judgments. It would be appropriate to refer to a few of them before dealing with the rival contentions.

6. In Gurcharan Singh and others etc. v. State (Delhi Administration)1, the appellant Gurcharan, who was Superintendent of Police, was charged along with other police personnel under Section 120B read with Section 302 of the IPC. During the preliminary enquiry six alleged eyewitnesses, who were police personnel, did not support the prosecution case. However, after the FIR was lodged during the course of investigation, seven witnesses including the said six police personnel gave statements implicating appellant Gurcharan Singh. One eyewitness A.S.I. Gopal Das made a statement under Section 164 of the Code in favour of the prosecution. Learned Sessions Judge released appellant Gurcharan Singh on bail after observing that there was little to gain by him by tampering with the witnesses who had, themselves, already tampered with their evidence by making contradictory statements. Learned Sessions Judge further observed that after reviewing the entire material he was of the opinion that there was little probability of appellant Gurcharan Singh fleeing from justice or tampering with the witnesses. He noted that having regard to the character of evidence he Page 27 of 58 R/CR.MA/6480/2017 ORDER was inclined to grant bail. The prosecution moved the High Court under Section 439 (2) of the Code for cancellation of the said order. The High Court inter alia observed that considering the nature of the offence and the character of the evidence, the reasonable apprehension of witnesses being tampered with and all other relevant factors, it had no option but to cancel the bail. The High Court observed that learned Sessions Judge did not exercise his judicial discretion on relevant wellrecognized principles. An appeal was carried from the said order to this court.

7. This court in Gurucharan Singh observed that the powers of the High Court and the Sessions Court under Section 439 (1) of the Code are much wider than those conferred on a court other than the High Court and Sessions Court in respect of bail. However, certain considerations which have to be taken into account are common to all courts. This court noted that gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardizing his own life being faced with a grim prospect of a possible conviction in the case; of tampering witnesses; the history of the case as well as its investigation and such other relevant grounds will have to be taken into account. To ascertain whether there is prima facie case against the accused, character of the evidence will have to be considered. While confirming the High Court's interference with the discretion exercised by the Sessions Court, this court expressed its displeasure about the unwarranted premature comments made by the Sessions Page 28 of 58 R/CR.MA/6480/2017 ORDER Court on the merits of the case when at that stage it was only called upon to consider whether prima facie case was made out against the accused or not. This court particularly referred to statement of ASI Gopal Das, recorded under Section 164 of the Code and observed that this witness had made no earlier contradictory statement and the taint of unreliability could not be attached to his statement at that stage as was done by the Sessions Court. This court found that the Sessions Court was not alive to legal position that there was no substantive evidence recorded against the accused until the eyewitnesses were examined in the trial. Serious note was taken of the fact that the Sessions Court had not focused its attention on relevant considerations. The approach of the Sessions Judge was viewed as suffering from serious infirmity and cancellation of bail was endorsed.

8. In Puran v. Rambilas and Anr.2, the appellant therein was charged under Sections 498A and 304B of the IPC. The Additional Sessions Judge, Nagpur released the appellant therein, on bail. The High Court cancelled the bail granted to the appellant. The said order was under challenge before this court. It was argued that the rejection of bail in a nonbailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. It was argued that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.

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R/CR.MA/6480/2017 ORDER Reliance was placed on Dolat Ram v. State of Haryana3in support of this submission. This court observed that in Dolat Ram, it was clarified that the above instances are merely illustrative and not exhaustive and one such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime and that too without giving any reasons. This court observed that such an order would be against the principles of law and, interest of justice would require that such a perverse order be set aside and bail be cancelled. This court found that inasmuch as the Sessions Court had ignored vital materials while granting bail, the High Court had rightly cancelled the bail. It was further observed that such orders passed in heinous crimes would have serious impact on the society and an arbitrary and wrong exercise of discretion by the trial court has to be corrected.

9. In Dinesh M.N. (S.P. ) v. State of Gujarat4, the appellant therein a police officer was involved in a case of fake encounter. Learned Sessions Judge released him on bail. It was evident from the bail order that learned Sessions Judge was influenced by the fact that the deceased was a dreaded criminal, against whom as many as 25 FIRs were lodged. An application for cancellation of bail was moved before the High Court under Section 439(2) of the Code. The High Court cancelled the bail holding that learned Sessions Judge had not kept in view the seriousness of the offence in which the high ranking police officer was involved. It was observed that past conduct or antecedents of the deceased could not have been a ground for grant of bail to the accused. This court while dealing Page 30 of 58 R/CR.MA/6480/2017 ORDER with the challenge to the said order held that though it is true that parameters for grant of bail and cancellation of bail are different, if the trial court while granting bail acts on irrelevant materials, bail can be cancelled. It was observed that perversity of a bail order can flow from the fact that irrelevant materials have been taken into consideration adding vulnerability to the order granting bail. On the facts of the case, this court held that, that the deceased had a shady reputation and criminal antecedents, was certainly not a factor which should have been taken into consideration while granting bail to the accused. It was the nature of the act committed by the accused which ought to have been taken into consideration. The order of the High Court was confirmed on the ground that the bail was granted on untenable grounds. The argument that supervening circumstances such as attempt to tamper with the evidence and interference with the investigation were absent and, therefore, bail could not have been cancelled by reappreciating evidence, was rejected by this court.

10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own Page 31 of 58 R/CR.MA/6480/2017 ORDER peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have Page 32 of 58 R/CR.MA/6480/2017 ORDER adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail."

19. The decision in a case of Amar Yunus Bhavnagri (supra), deserves reference where the Hon'ble Apex Court has held that the main accused was already enlarged on bail for want of filing of the chargesheet within a prescribed period. A report was made to the learned Magistrate to discharge rest of the accused. The Police Inspector had submitted his report for discharging all accused as per the order of the Additional Commissioner of Police. According to this court, it was a case where the main accused was released and there was no question of keeping other accused in jail, holding that otherwise, it would be a travesty of justice. This matter would have no applicability to the case on hands.

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20. This court is conscious of the fact that cancellation of bail is an extremely serious matter particularly once the bail is already granted as personal liberty would have to be given prime weightage and yet the court cannot be of obvious of need for serving a larger course of societal interest. What is being considered here is whether the order suffers from infirmities resulting into miscarriage of justice or having been granted on irrelevant material or ignoring relevant material of every criminal case will have to be decided on the strength of facts and circumstances.

21. The respondents herein are all alleged to have been involved in triple murder case and each of them is said to have Dhariya, Gupti, sword in their hands. Their involvement in the alleged commission of crime is prima facie apparent from the F.I.R. itself. Not only the first informant but Page 34 of 58 R/CR.MA/6480/2017 ORDER other eye witnesses who were present at the time of incident, according to the case of the prosecution, have spoken of the deadly weapons they had in their hands and the alleged role played by each of them in the said incident. It is thus nobody's case that there was no prima facie involvement of these persons as per the case of the prosecution or as the papers of the chargesheet which had been submitted and committed to the court of Sessions eventually.

22. The question that arises as to whether the grant of bail by the trial court is on irrelevant considerations and on mis application of principles resulting into miscarriage of justice, as the trial court having relied upon the order of this court granted bail in case of coaccused Shabbirali Virani.

22.1. It is to be noted that Shabbirali Virani, the person named in the Page 35 of 58 R/CR.MA/6480/2017 ORDER F.I.R. and in the statements of many eye witnesses was found present with weapon with 5 to 10 other unknown persons as is emerging from the papers of the investigation/ charge sheet.

22.2. Shabbirali Virabi preferred an application before this court being Criminal Misc. Application (Regular bail) No. 32240 of 2016. It would be worthwhile to reproduce the entire order which is followed by the Trial Court for grant of regular bail to the rest:

"3. The present application is filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with an offence being C.R.No.I 79 of 2016 registered with Talaja Police Station, Bhavnagar, for the offences punishable under Sections 302, 307, 143, 147, 148, 149, 34, 120 B, 337, etc. of the Indian Penal Code and Section 135 of the G.P.Act, Section 25(1)(B), A with Section 27(2) of the Arms Act.

4. Learned advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

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5. Learned Additional Public Prosecutor appearing on behalf of the respondent State has opposed grant of regular bail looking to the nature and gravity of the offence.

6. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.

7. I have heard learned advocates appearing on behalf of the respective parties and perused the papers of investigation and considered the allegations levelled against the applicant and the role played by the applicant. The applicant is aged about 67 years.

8. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an offence being C.R.No.I 79 of 2016 registered with Talaja Police Station, Bhavnagar, on executing a personal bond of Rs.10,000/ (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

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R/CR.MA/6480/2017 ORDER [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station on every Monday for a period of three months and thereafter on any day of first week of each English Calendar Month for a period of one year;

[f] furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court."

22.3. It is thus quite apparent that the learned Additional Public Prosecutor who appeared for and on behalf of the State, though had opposed the grant of regular bail, looking to the nature of gravity of offence, the reasoned order had not be pressed into service and the same had not been insisted by either side. The court on looking to the papers of the investigation and nature of allegations made against the applicant in the first information report, exercised discretion in favour of the coaccused Shabbirali Virani. At that stage, chargesheet was not filed, as his application was prior Page 38 of 58 R/CR.MA/6480/2017 ORDER to the filing of chargesheet. Since the papers of chargesheet were also not available, the details which could be carved out eventually from the papers of chargesheet also may not be available to the parties. This order came to be passed on 19.12.2016. The chargesheet in the present case has been filed on 29.12.2016.

22.4. The applicants moved application for regular bail before the Trial Court on 04.01.2017 and the order came to be passed on 13.01.2017 granting regular bail on the principle of parity to the present three accused - respondents and also coaccused Imran Vajirali Bhurani. The trial court noticed that prima facie, there is a case against all the accused, however, according to it, as the role attributed to coaccused Shabbirali Virani is the same as that of the present respondents - accused, these respondents - accused deserve the grant of Page 39 of 58 R/CR.MA/6480/2017 ORDER regular bail. It is also worthwhile to note that the trial court also while noticing the possible apprehension on the part of the complainant and the witnesses, found that the parity is something which would be entitling the accused of regular bail and accordingly granted the same to other four persons. 22.5. Reliance is also placed by the trial court on the decision of this court in the case of Rameshbhai Batubhai Dhabi v. State of Gujarat reported in 2011 (3) GLR 1999, wherein, it has been held that superior courts have granted bail to coaccused under sections 438 and 439 of the Code of Criminal Procedure, subordinate courts are dutybound to consider same and apply if same set of facts exist unless there being any extraordinary circumstances or striking dissimilarities to deviate from rule of parity.

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R/CR.MA/6480/2017 ORDER 22.6. In this matter marriage of the complainant aged about 19 years with Mahesh Patel was performed as per Hindu customary rituals. The complainant had preferred complaint against her relative and requested for protection of her personal self, as she allegedly received the threats from her family. All allegations were against one Prabhat Makwana, coaccused, who had been granted anticipatory bail. The complaint was also made after 12 months and investigation was over and chargesheet was filed. Two co accused had been granted anticipatory bail and regular bail respectively. The applicant was not the principal offender, but was alleged to have accompanied the main accused in the car. The denial of regular bail to such an accused on the ground of parity was deprecated by the court, by holding that subordinate court on misconstruing and misinterpreting the decision of law by the higher court, denied the bail, and it was Page 41 of 58 R/CR.MA/6480/2017 ORDER further held that in the given set of facts of that case, a casual and cursory remark on the part of the learned sessions judge was not desirable.

23. Yet another decision of Ramesh Chander Singh V. High Court of Allahabad (supra) relied upon by the accused deserves reference here. It was a case of broad daylight murder wherein two persons died, the coaccused had been granted bail by the High Court, and therefore, the Apex Court held that, when a coaccused had been granted bail by the High Court, it cannot be said to have passed an unjustified oder granting bail, that too, to the accused who was a student and had been in jail for more than one year.

23.1. It was a matter of reverting the Presiding Officer to the post of Civil Judge by way of punishment because of his judicial order, the Apex Court had held that, the Apex Page 42 of 58 R/CR.MA/6480/2017 ORDER court on several occasions had disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments / orders passed by them are wrong. This judgment was delivered in completely different context and ratio laid would have no applicability, however, while so holding, some observations made therein deserve to be regarded and therefore, no further dilation of this application is needed.

24. The trial court though is bound to consider the principle of parity, it could not have disregarded the broad principles of grant of regular bail laid down in various authorities discussed hereinabove. Principles of parity whether at all can be applied in a matter like present one where, virtually no reason is assigned by the court is a serious question to be regarded and again, in absence of any reason except referring to the age of Page 43 of 58 R/CR.MA/6480/2017 ORDER accused Shabbiarli by this court, the trial court ought not to have disregarded well laid down criteria of grant of regular bail in case of triple murder with overwhelming prima facie evidence. Disregard of relevant aspects and consideration of irrelevant material itself could be a ground for cancellation.

25. As can be noticed from the subsequent F.I.R. which has been filed being IIC.R. No. 134 of 2018, one of the victims who himself was a injured witness had filed F.I.R. with Nilambaug Police Station on 19.06.2018. This court pursuant to the same had called for the report of the Superintendent of Police, Bhavnagar and had also directed the concerned Investigating Officer to examine the truthfulness of the said F.I.R. which essentially alleged against one of the co accused Imranbhai Bhurani that he had threatened the eye witness to withdraw the case or meet the same fate as other deceased. Page 44 of 58

R/CR.MA/6480/2017 ORDER This court without prejudice to the rights of the respondents had directed the respondents accused to keep out of Bhavnagar District, so that the investigation in relation to the said F.I.R. could be carried out independently and without any influence of any of these persons. The investigation in relation to the said F.I.R. is going on. It is expected that officer concerned would look into the matter with requisite seriousness and sensitivity and shall attempt to reach to the truth expeditiously.

26. As the investigation is still pending, of the said FIR of alleged tampering with the witnesses, supervening circumstances, though a ground for cancellation, is not being considered the ground for cancellation. Apparent face is coaccused Imran in the recent F.I.R., timings of this F.I.R. cannot go unnoticed, as the trial is now for framing of charge. It is given to the understand that Page 45 of 58 R/CR.MA/6480/2017 ORDER the trial has not yet started in these two years and charges are likely to be framed in a near future. Be that as it may, the State had approached this court soon after granting of bail to the respondents by the trial court. This court issued notice, making the same returnable on 06.04.2017, these matters of cancellation never appeared on the board and it is recently that the matters were brought on record and taken up for hearing. Therefore, the passage of two years per se cannot be the ground for this court to overlook the failure and regard of relevant consideration with such grave allegations.

27. To revert back to the order, this Court had chosen not to give a reasoned order so far as the coaccused Shabbirali, aged co accused was concerned, as both the parties had not pressed for the same. Allegation levelled against Shabbirali Virani of course is of carrying deadly weapon alongwith 5 to Page 46 of 58 R/CR.MA/6480/2017 ORDER 10 unknown persons, his application was prior to the filing of final report in the form of chargesheet. Again, in the statement of none of the witnesses any weapon has been specified in the hands of Shabbiali. He is 67 years of age which this court emphasized while passing his order, possibly to drive home the point that the same was one of the factors which led the court to consider his case, particularly, in absence of any specific weapon attributed in the hands of this accused. It is not permissible to read between lines or to read something more in the order, when the tenor is clear, however, the court cannot disregard the stage at which this application was allowed. It is quite obvious that the court considered the nature of allegations in the F.I.R. against this Shabbiali, and in absence of papers of chargesheet, since no chargesheet was filed at that stage as mentioned hereinabove, considering his age, it has granted regular Page 47 of 58 R/CR.MA/6480/2017 ORDER bail to him.

28. The trial Court ought to have regarded the fact that after filing of the final report in the form of chargesheet papers, the application for bail had been placed before it and in absence of reasoned order and particularly with an emphasis on the age of the person being of 67 years, the court could not have applied the principle of parity. As learned advocates appearing before this court were not appearing in the earlier litigation, none of them was aware, about the additional ground of age and of other element. In absence of any reasons rendered by the court, emerging on record, assuming that there were none on record, the fact remains that after chargesheet, there appears to be voluminous primafacie material and sufficient evidence against all the three respondents - accused, specifying deadly weapons in their hands and also their individual roles in inflicting the Page 48 of 58 R/CR.MA/6480/2017 ORDER lethal injuries to the victims. Report of F.S.L. also indicates that two of the weapons held by these persons reflect the presence of blood marks of the deceased on them. Thus, these glaring involvement, use of weapons, multiple injuries on deadbodies from post mortem notes and bloodmarks on the weapons and their link with the blood group of the deceased could not have been disregarded merely picking up principle of parity, when in fact, role of Shabbirali and those of respondents also as discussed in stricto sensu cannot be said to attract parity principles.

29. Thus in the opinion of the court, therefore, it cannot be said to be either this was the case of right application of parity principle or based on any other well recognized principles for grant of bail. This order was passed in case of four persons who allegedly killed three persons brutally and Page 49 of 58 R/CR.MA/6480/2017 ORDER mercilessly and the incident took place without any kind of instigation on the part of the victims. Continuing the same would amount to permitting continuation of miscarriage of justice. As the Hon'ble Supreme Court has held time and again that even in absence of the supervening circumstances with the evidence of failure to disregard the vital consideration or relevant factors as also of the court regarding irrelevant consideration should be the ground of cancellation, when overwhelming and cogent grounds exist and this is one such case.

30. Bearing in mind that the principle of bail is a rule and jail is an exception and also considering all those parameters which are laid down for grant of bail, this court needs to accede to the request of cancelling the bail of the applicants, considering the serious nature of crime and prima facie involvement of the accused in the matter. The Page 50 of 58 R/CR.MA/6480/2017 ORDER papers of the investigation if are looked into firearms and lethal sharp cutting weapons resulted into death of three persons. Not only the firearms but also weapons carried by the respondents are also equally attributable to the death of three persons from post mortem note. As could be noticed from the submission made by both of them that those who had firearms in their hands have not been released by the court except one person who has been released on the ground of his serious illhealth.

31. This is not the application seeking cancellation of bail only on the foundation of any kind of supervening circumstances or breach of any conditions imposed by the trial Court but essentially on the ground of failure of consideration of relevant materials and consideration of irrelevant factors, while applying principle of parity. Therefore, apt would be to refer to the Page 51 of 58 R/CR.MA/6480/2017 ORDER decision of the Apex Court rendered of course, in the context of sentencing the accused applying parity, since principles of parity are well laid down in the case of Ajmer Singh v. State of Haryana reported in (2010) 3 SCC 746, the Apex Court discussed the said principles to hold and observe thus:

"26. The Court of Appeal, Alberta, Canada in R. v. Christie discussed the meaning of the principle in connection with sentencing in criminal cases. The Court of Appeal stated:

"40. Parity is a principle which must be taken into account in any sentence, and particularly where the offence was a joint venture. There will, of course, be cases where the circumstances of the coaccused are sufficiently different to warrant significantly different sentences, such as where one coaccused has a lengthy related criminal record or played a much greater role in the commission of the offence."

Thus, expressing its view on 'parity in sentencing' the Court observed:

"43. What we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together, particularly in cases involving joint ventures."

27. Also the observation of the Court of Appeal, Alberta, in Wahby v R., Page 52 of 58 R/CR.MA/6480/2017 ORDER whereby, the Court quoted the explanation given in Goddard v R., is relevant for the discussion in present case:

"In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind, as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the proper application of sentencing principles to the particular case. Inevitably there will be a range of appropriately proportionate sentences which may be passed for the offence before the court."

28. The Court of Appeal of the Supreme Court of Victoria, Australia in R v. Hildebrandt observed:

"Judicial expositions of the meaning of the parity principle are not entirely uniform. The term "the parity principle"

is used in at least two senses in the relevant authorities. First, to express the recognition that like cases should be treated alike (itself an emanation of equal justice). Secondly, the phrase is used to describe the requirement to consider the "appropriate comparability"

of cooffenders, and in that sense, comprehends the mirror propositions that like should be treated alike, and that disparate culpability or circumstances may mandate a different disposition."

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29. In Postiglione v R. Dawson and Gaudron, JJ. Stated:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of cooffenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ...Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the cooffenders in question and their different degrees of criminality."

The Court, therefore, concluded the principle to mean:

"..... if the concept simply is that, when two or more cooffenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation."

What can be inferred from the above decision is, that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a coaccused is one who is awarded punishment along with the other accused in the same proceedings."

32. It is also in the case of Badru Ram and Page 54 of 58 R/CR.MA/6480/2017 ORDER others v. State of Rajasthan reported in (2015) 11 SCC 476, that the doctrine of parity cannot replace the substantive evidence of eyewitnesses, thus:

"9. Learned Amicus Curiae appearing on behalf of the appellants have argued that since the High Court has acquitted six persons, on the doctrine of parity the appellants before us should also be acquitted. We find from the High Court judgment that the reasons for acquittal of the six other accused is only because they were not named by Radhey Shyam in the Parcha Bayan. The State is not in appeal before us on this finding of the High Court. The doctrine of parity cannot replace the substantive evidence of the two injured eyewitnesses mentioned above, who have been believed concurrently by the courts below."

33. It would not be out of place to quote the Apex Court on the concept of individual liberty and curtailment of the same by law from the the decision of the Apex Court in the case of Neeru Yadav v. State of Uttar Pradesh and another reported in (2016) 15 SCC 422, the apex court held thus:

"13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on Page 55 of 58 R/CR.MA/6480/2017 ORDER occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:

"Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters."

14. E. Barrett Prettyman, a retired Chief Judge of US Court of Appeals had to state thus: "In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it Page 56 of 58 R/CR.MA/6480/2017 ORDER dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematised restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realisation, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity."

34. Resultantly, these applications are allowed. The order dated 13.01.2017 passed by the learned 7th Additional Sessions Judge, Bhavnagar in Criminal Misc. Application Nos. 4 of 2017, 8 of 2017 and 10 of 2017 granting regular bail to the respondents - accused is quashed and set aside and thereby, the regular bail granted to the respondents - accused stands cancelled. The respondents - accused shall surrender themselves before the concerned court without further loss of time and they shall be sent to the judicial custody, forthwith.

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35. At this stage, learned advocate appearing for the respondents seeks time to approach the Apex Court against this order. 35.1 Bearing in mind the fact that respondents - accused were on bail for all these period, they are entitled to approach the Apex Court, and therefore, they are being given time to surrender before the concerned court after a period of five weeks from the date of receipt of a copy of this order.

Direct service is permitted.

(MS. SONIA GOKANI, J) pradhyuman Page 58 of 58

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