The accused cannot claim parity with the co-accused while claiming for bail if his role is major: Supreme Court |Lawmania

Justice Dr. Dhananjaya Y. Chandrachud and Justice BV Nagarathna set aside the impugned judgment and order of the High Court of Judicature at Rajasthan which granted bail to the accused/respondent who was accused for offences under Sections 302, 364, 201 and 120B of Indian Penal Code, 1860 and under Section 3(2)(V) of Schedule caste and Schedule Tribes (prevention of atrocities) Act, 1989.

After chargesheet, the accused/respondent along with four other accused, including wife of the deceased, was found guilty for murder of the appellant’s son. The involvement of deceased’s wife and three other persons were revealed during the course of investigation. According to the fact on record they caused the death of appellant’s son by injecting Ketamine, an anesthetic drug. The investigating officer  was able to prove the involvement of wife of the deceased as per the mobile phone data and messages exchanged between her, deceased husband and respondent/accused and also on the basis of FIR filed by appellant, which were proved beyond doubt. During investigation the mobile phone data showed that she had been in constant touch with the respondent/accused after the death of her husband.

During investigation the police recovered an empty vial of ketamine, a syringe, mobile cover and a pair of spectacles belonging to the deceased in consequence of the information furnished by the respondent/accused under Section 27 of the Indian Evidence Act, 1872.

Thereafter the respondent/accused moved applications of bail in several courts but was rejected. The co-accused (deceased’s wife) was granted bail on the ground that she had eleven months child and due to her incarceration, her child was also confined with her in jail.

Eventually, by the impugned order the accused was able to get bail from the High Court under the circumstances below:

The appellant/respondent was in custody for a period of two and a half years;

Out of seventy six witnesses only twenty five have been examined;

There was a delay in lodging the FIR;

While the initial Forensic Science Laboratory report did not contain any reference to the use of the ketamine, it was after four months that police had developed a case that ketamine was administered to the deceased; and

The co-accused has been enlarged on bail.

According to the Supreme Court, the High Court has gravely erred in enlarging the respondent on bail. The order of the High Court contains serious infirmities. The High Court has also committed error by not following the precedents of the Apex Court governing the grant of bail.

A two-Judge Bench of the Supreme Court in Ram Govind Upadhyay vs. Sudarshan Singh (2002) 3 SCC 598, which has been reiterated by Court in Prashanta Kumar Sarkar vs. Ashis Chatterjee  (2010) 14 SCC 496,  has listed the considerations that govern the grant of bail without attributing an exhaustive character to them, which are:

(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.”

Disapproving the order of the High Court that the co-accused has been enlarged on bail, so respondent/accused is also entitled to grant bail on ground of parity.

The Hon’ble Apex Court went on to refer to  case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana 2021 (6) SCC 230, which had held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. In deciding the parity, the role attached to the accused, their position in relation to the incident and to the accused, their position in relation to the incident and to the victims is of utmost importance.

The Court observed in the case on the basis of facts on record that bail was granted to the co-accused primarily and substantially on the ground that she had a child of eleven months with her jail. This cannot be the basis to a claim of parity with the co-accused since the allegations in the FIR and the material that has emerged from the investigation indicate that a major role has been attributed to the respondent in the murder of the deceased.

The Court also said  “The consideration that twenty-five witness out of seventy-six witnesses had been examined must equally be weighed with the seriousness of the crime, the role attributed to the respondent and the likelihood of the evidence being tampered with if the respondent were to remain on bail during the course of trial. In the backdrop, it was wholly inappropriate for the High Court to proceed on the surmise that the police had developed a case that ketamine was administered, after four months of the incident”

Therefore for the above reasons, the Supreme Court set aside the impugned order of the High Court and accordingly directed the respondent to surrender forthwith, to be in custody.

Case: Shri Mahadev Meena vs. Praveen Rathore and Another ( Criminal Appeal No. 1089 of 2021)

DOJ: 27.09.2021