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

- **Citation:** [2021] 7 S.C.R. 17
- **Court:** Supreme Court of India
- **Decided:** 2021-04-20
- **Case number:** Criminal Appeal No. 422 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramesh-bhavan-rathod-v-vishanbhai-hirabhai-makwana-makwana-koli-anr-34900
- **Pages:** 35

## Headnote

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
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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 i

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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
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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 bearing on
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whether bail should be granted. 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. [Paras 20, 22][36-F-H; 37-A; 38-G-H; 39-A]
Ram Govind Upadhyay v. Sudharshan Singh (2002) 3
SCC 598:[2002] 2 SCR 526; Prasanta Kumar Sarkar
v. Ashis Chatterjee (2010) 14 SCC 496 : [2010] 12
 SCR 1165 - referred to
1.2 The High Court by its two orders granted bail to A-10
and A-15. Parity was sought with A-13 to whom bail was granted
on the ground (as the High Court recorded) that he was "assigned
similar role of armed with stick (sic)". Again, bail was granted to
A-16 on the ground that he was armed with a wooden stick and on
the ground that A-10, A-15 and A-13 who were armed with sticks
had been granted bail. The High Court evidently misunderstood
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. The High Court proceeded on the basis of parity on
a simplistic assessment, which cannot pass muster under the law.
[Para 23][39-D-H]
Neeru Yadav v. State of U.P. (2014) 16 SCC 508: [2014]
12 SCR 453 - referred to
1.3 It is evident that essentially the only order which contains
a semblance of reasoning is the order dated 22 October 2020 granting
bail to A-13. As a matter of fact, the submissions which have been
made on behalf of the accused substantially dwell on the same line
of logic in justifying the grant of bail on the ground that in the
subsequent statement dated 3 June 2020 of the informant, the genesis
and details of the incident which took place on 9 May 2020 as
elaborated in the FIR have undergone a substantial change. [Para
26][40-G-H]
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI)
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1.4 In granting bail to the six accused, the High Court
committed a 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. The first
circumstance which should have weighed with the High Court
but which has been glossed over is the seriousness and gravity of
the offences. The FIR which has been lodged on 9 May 2020
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 Sections 302, 143, 144, 147, 148, 149, 341, 384,
120B, 506(2) r/w Section 34 of the Penal Code were alleged. This
is apart from the invocation of the provisions of Sections 25(1-b)
A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police
Act. The FIR specifically refers to the presence of the accused
A-6, A-13, A-16, A-15, A-10 and A-17. It states that the accused
had all come to the scene of offence with pistols, dhariyas and
knives. A-6 and two others had fired from their rifles. Some of
these accused-A-6, A-13, A-16, A- 15, A-10 and A-17 are alleged
to have assaulted with dhariyas and lathis over the head and body
of victims. All of them were rushed to the Government Hospital
where they were pronounced dead. [Para 27][41-A-C; D-F]
1.5 Four days after the FIR was lodged by the informant on
9 May 2020, a cross FIR was lodged by A-6. This FIR contains a
narration of the pre-existing dispute over land and to an incident
which had taken place on 7 May 2020. A reading of the cross FIR
indicates that an intent on the part of the accused to launch an
assault on the deceased; the manner in which their pre-meditated
design was sought to be achieved by assaulting the deceased persons.
With the contents of the cross FIR as they stand, it was impossible
for any judicial mind, while adjudicating upon the applications for
the grant of bail, to gloss over the presence of the accused at the
scene of occurrence, the accused being armed with weapons and
their intent to assault them; and the actual incident, resulting in five
homicidal deaths. [Paras 28-30][41-F-G; 42-C-D; E-G]
1.6 The Post Mortem reports which have been produced
on the record indicate the extensive nature of the bodily injuries
which were sustained by each of the five deceased persons. It is
true that in the FIR it was alleged that the deceased were fired
upon as a result of which they fell to the ground whereas, in the
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subsequent statement, it has been stated that the injuries were
sustained as a result of dhariyas and sticks. Whether the deaths
occurred as a result of bullet wounds or otherwise can make no
difference on whether a case for the grant of bail was made out
once a 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 which were in the possession
of the accused. The High Court in its first order was persuaded
to grant bail on the specious ground that the details of the incident
as they appeared in the subsequent statement of the informant
are at variance with the FIR. These are matters of trial. The High
Court has, however, clearly overlooked the cross FIR and the
implications of the content of the FIR on the basic issue as to
whether bail should be granted. It is also important to note that the
presence of women on the side of the accused is a fact which is noted
in the cross FIR itself. [Para 31][42-G-H; 43-A-D]
1.7 There has been a manifest failure of the High Court to
advert to material circumstances, especially the narration of the
incident as it appears in the cross FIR. Above all, the High Court
has completely ignored the gravity and seriousness of the offence
which resulted in five homicidal deaths. This is clearly a case where
the orders passed by the High Court suffered from a clear perversity.
[Para 32][43-E-F]
1.8 In the order of the High Court granting bail to A-13,
there was a reference to the submission of the Public Prosecutor
to the criminal antecedents of A-13 bearing on previous FIRs
registered against him in 2017 and 2019. This aspect bearing on
the criminal antecedents of A-13 was not considered in the reasons
which have been adduced by the Single Judge. That apart, the
ground on which A-13 was granted bail is that in the subsequent
statement dated 3 June 2020, the overt act which was attributed
in the FIR was found to be missing. Having said this, the Judge
observed that the order shall not be treated as a precedent to
claim bail on the basis of parity in any other case. The said
observation of the Single Judge is disapproved. Whether parity
can be claimed by any other accused on the basis of the order
granting bail to A-13 ought not to have been pre-judged by the
Single Judge who was dealing only with the application for the
grant of bail to A-13. The observation that the grant of bail to
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A-13 shall not be considered as a precedent for any other person
who is accused in the FIR on grounds of parity does not constitute
judicially appropriate reasoning. Whether an order granting a bail
is a precedent on grounds of parity is a matter for future
adjudication if and when an application for bail is moved on the
grounds of parity on behalf of another accused. In the event that
parity is claimed in such a case thereafter, it is for that court before
whom parity is claimed to determine whether a case for the grant
of bail on reasons of parity is made out. In other words, the
observations of the Single Judge are inappropriate and erroneous.
Bail was thereafter granted to A-10 and A-15 on the ground of
parity as claimed with the order granting bail to A-13. The Single
Judge observed that the Additional Public Prosecutor had not
made any point of distinction. Subsequently, parity was the basis
on which bail was sought in the case of A-16. While granting bail
the Single Judge observed that parties did not press for further
reasoned orders. A similar observation is contained in the order
of the Single Judge granting bail to A-17. The order of the High
Court granting bail to A-6 again contains the same statement.
The observations of the High Court in a succession of orders in
the present case recording that the Counsel for the parties
"do not press for a further reasoned order", is disapproved.
[Paras 33-34][43-F-G, H; 4-A-D, E-H; 45-A]
Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC 446:
[2012] 7 SCR 584 - referred to
1.9 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. It is a well-settled
principle that in determining as to whether bail should be granted,
the High Court, or for that matter, the Sessions Court deciding
an application under Section 439 of the CrPC would not launch
upon a detailed evaluation of the facts on merits since a criminal
trial is still to take place. These observations while adjudicating
upon bail would also not be binding on the outcome of the trial.
But 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
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reasons why it has either granted or refused bail. This is for the
reason that the 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.
The rights of the victims and their families are at stake as well.
These are not matters involving the private rights of two individual
parties, as in a civil proceeding. The proper enforcement of
criminal law is a matter of public interest. Thus, the manner in
which a succession of orders in the present batch of cases has
recorded that counsel for the "respective parties do not press
for further reasoned order" are disapproved. If this is a
euphemism for not recording adequate reasons, this kind of a
formula cannot shield the order from judicial scrutiny. [Para 35]
[45-A-F]
1.10 Grant of bail under Section 439 of the CrPC is a matter
involving the exercise of judicial discretion. Judicial discretion in
granting or refusing bail as in the case of any other discretion which
is vested in a court as a judicial institution is not unstructured. The
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. The 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. [Para 36]
[45-F-G]
Chaman Lal v. State of U.P. (2004) 7 SCC 525: [ 2004]
3 Suppl. SCR 584 - referred to
1.11 As regards the application for bail of A-6, the High
Court sought to support its decision to grant bail by stating that it
had perused the material on record and was granting bail "without
discussing the evidence in detail" taking into consideration the facts
of the case; the nature of allegations; gravity of offences; and the
role attributed to the accused. As a matter of fact there was no
discussion or analysis of circumstances at all. This lone sentence in
the order of the Single Judge leaves a Court before which the order
granting bail is challenged, completely without guidance on the
considerations which weighed with the High Court in granting
bail. In deciding whether or not to grant bail the High Court is
not at a stage where it adjudicates upon guilt. This is to be analyzed
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during the course of criminal trial where evidence has been
recorded. But surely, the order of the High Court must indicate
some reasons why the Court has either granted or denied bail.
The Sessions Judges in the instant case have indicated their
reasons for the ultimate conclusion. This unfortunately was not
observed in the order of the High Court. There is no question
now of ordering a remand to the High Court in the case of A-6
since the question of bail has been argued fully before this Court.
Moreover, the case of A-6 has been considered together with the
entire batch of cases in which bail has been granted initially in the
case of A-13, which has been followed on the grounds of parity in
the case of the other accused. [Paras 37-38][46-C-H; 47-G-H;
48-A-B]
Sonu v. Sonu Yadav Crl Appeal No. 377 of 2021,
decided on 5.4. 2021 - relied on.
1.12 The orders granting bail to the respondent-accused
A-6, A-10, A-13, A-15, A-16 and A-17 suffer from a clear perversity.
The orders of the High Court are set aside. All the said accused
are directed to surrender forthwith. [Paras 41- 42][51-C-D, F-G]
Sanjay Chandra v. Central Bureau of Investigation 2012
(1) SCC 40; Mahipal v. Rajesh Kumar Alias Polia (2020)
2 SCC 118; Prabhakar Tewari v. State of U.P. [2020] 11
SCC 648; Ram Govind Upadhyay v. Sudarshan Singh
(2002) 3 SCC 598:[2002] 2 SCR 526; Prasanta Kumar
Sarkar v. Ashis Chatterjee (2010) 14 SCC 496: [2010] 12
 SCR 1165; The State of Kerala v. Mahesh Criminal Appeal
No 343 of 2021 decided on 19.03.2021 - referred to
Case Law Reference
[2011] 13 SCR 309
referred to
Para 9, 18
[2002] 2 SCR 526
referred to
Para 20
[2010] 12 SCR 1165
referred to
Para 21
[2014] 12 SCR 453
referred to
Para 22
[2012] 7 SCR 584
referred to
Para 33
[2004] 3 Suppl. SCR 584
referred to
Para 36
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[2012] 1 SCC 40
referred to
Para 39
(2020) 2 SCC 118
referred to
Para 39
(2020) 11 SCC 648
referred to
Para 39
[2002] 2 SCR 526
referred to
Para 40
[2010] 12 SCR 1165
referred to
Para 40
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 422 of 2021
From the Judgment and Order dated 21.12.2020 of the High Court
of Gujarat at Ahmedabad in R/Criminal Misc. Application No. 19382 of
2020.
With
Criminal Appeal Nos. 423, 426, 424-425 And 427 of 2021
J.S. Attri, Sr., Adv., Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna,
Vinay Mathew, Aniruddha P Mayee, Haresh Raichura, Ms. Saroj
Raichura, Kalp Raichura, Ram Bhadauria, Purvish Jitendra Malkan, Ms.
Dharita Purvish Malkan, Jitendra M. Malkan, Ms. Deepa Gorasia, Alok
Kumar, Ms. Neha Ambashtha, Ms. Nandini Chhabra, Ms. Bhavna Sarkar,
Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. This batch of five appeals arises from orders of the High Court
of Gujarat granting bail, under Section 439 of the Code of Criminal
Procedure 19731, to six persons who have been implicated in five homicidal
deaths.
2. A First Information Report ("FIR") being CR No
11993005200314 was registered on 9 May 2020 at Police Station Aadesar,
District East Kachchh - Gandhidham for offences under Sections 302,
143, 144, 147, 148, 149, 341, 384, 120B, 506(2) and 34 of the Indian
Penal Code, Sections 25(1-b) A, 27 and 29 of the Arms Act and Section
135 of the Gujarat Police Act. The appellant - Ramesh Bhavan Rathod -
is the informant on whose statement, the FIR was registered at 1930
hours in respect of an incident which took place at 1300 hours. The
incident took place in village Hamirpur which is at a distance of 20 kms
from the police station. The incident which led to the commission of five
1 "CrPC"
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI)
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murders had its genesis in a land dispute. The informant alleged that he
and his brother Pethabhai had gone to their farm at 6:00 am. At 1 pm, the
informant, Pethabhai and his brother-in-law Akhabhai were returning
home in a Scorpio vehicle with five other persons. When the vehicle
reached the untarred road passing through the farm of Lakha Hira Koli
and Kanji Bijal Koli, these two persons came out along with Lakha Hira
Koli. Lakha Koli dashed his tractor on the front portion of the Scorpio
vehicle. Kanji Koli parked his tractor on the rear side of the Scorpio,
behind which another Sumo vehicle came to be stationed. The Scorpio
and its occupants were waylaid. As the informant and others attempted
to run away from the scene, he saw the homicidal incident which he
describes in the following terms:
 "..At that time I saw that Dhama Ghela Koli, Devendrsinh alias
Lalubha Ghelubha Vaghela, Vishan Hira Koli, Bharat Mamu Koli,
Dilip Mamu Koli, Ramshi Hira Koli, Pravin Hira Koli, Bhaghubha
Hasubha Vaghela, Mohansang Umedasng Vaghela and Vanraj Karsan
Koli and Dinesh Karsan Koli all come with weapons Pistol, Dhariya,
Knife from the thorny fence nearby, in which Dhama Gela Koli
and Devendrasinh alias Lalubha Gelubha Vaghela and Visan Hira
Koli and Bharat Mamu Koli had fired rounds from Rifles in their
hand targeting Akhabhai and others at that time. Akhabhai
Jeshangbhai Umat my Brother Pethabhai Bhavanbhai Rathod and
Amara Jeshang Umat and Lalji Akhabhai Umat and Vela Panchabhai
Umat injured due to firing and laying on land and that time Lakha
Hira Koli's Wife, Kanji Bijal Koli's Wife Lakhman Bijal Koli's
Wife and Dhama Ghela Koli's Wife and Vishan Hira Koli's Wife
also come there, their name is I do not know, and Visan Hira Kofi
talk with Akhabhai that why you are cultivating my father and
grand father's land that is our land we also said before that this
land you do not cultivate so today your life is over. This was said
by Visan Hira Koli and thereafter Dilip Mamu Koli, Ramshi Hira
Kofi, Bhaghubha Hasubha Vaghela Mohansang Umedsang Vaghela
and Prabhu Ghela Koli, with Dhariya in their hands and in the
hands Pravin Hira Koli, Siddhrajsinh Bhaghubha Vaghela, Kheta
Parbat Koli, Vanraj Karsan Koli, and Dinesh Karsan Kofi with
Lathi (Wooden Stick) and all together assaulted blindly with Dhariya
& Lathi over the head and body of Akhabhai Jeshangbhai Umat
and my brother Pethabhai Bhavanbhai Rathod and Amara Jeshang
Umat and Lalji Akhabhai Umat and Vela Panchabhai Umat and
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those people when assaulted that time all five are shouting "save
save" but those people are in large gathering so I cannot go near
so I cannot save those five those because they will kill me so I ran
away from and I go to my Village..."
3. The incident resulted in the death of five persons. Among the
twenty-two accused are Vishan Heera Koli (A-6), Pravin Heera Koli (A10), Sidhdhrajsinh Bhagubha Vaghela (A-13), Kheta Parbat Koli (A-15),
Vanraj Karshan Koli (A-16) and Dinesh Karshan Akhiyani (Koli) (A-17).
The post-mortem was conducted on 10 May 2020. A panchnama is alleged
to have been conducted at the scene of offence on the next day, i.e. on 10
May 2020, resulting in the recovery of, inter alia, two country made
guns, two indigenous counterfeit guns, four dhariyas and one wooden
stick.
4. On 13 May 2020, a cross FIR was registered at the behest of
Vishan Heera Makwana (Koli) being FIR No 11993005200315 at Police
Station Aadesar. The informant in the cross FIR claims to be an original
resident of village Hamirpar and is presently residing at Village Anjar. The
FIR states that after the lockdown had been declared on 25 March 2020,
the informant had left Anjar to go to village Hamirpar. About fifteen years
ago certain agricultural land had been sold to another person, who
subsequently gave it for cultivation to Akhabhai. Akhabhai was refusing
to give the fields for cultivation to the informant as a result of which a
quarrel had taken place on 7 May 2020. The informant's motor cycle had
been taken away by the police. The issue had been settled at the intervention
of persons belonging to the community and no complaint was filed.
According to the cross FIR on 9 May 2020, the informant Vishan sent his
nephew to the Police Station together with Akhabhai to retrieve the motor
cycle. The cross FIR narrates Vishan's version of the incident which took
place on 9 May 2020 in the following terms:
"..We have decide to kill Akhabhai hence I myself along with my
Brother Lakhbhai Hira Koli, Dinesh Karshan Koli, and Lalubha
Ghelubha Vaghela sat in Ritz Car and proceeded towards Bhimasar
at the time I was driving the said Car and I tried to dash the said
Car with Akhabhai and tried to kill him. But Akhabhai ran away
nearby and we came to our field (Wadi) There after around 12'0
Clock noon Akhabhai ring me on my mobile phone and said that
why you have tried to dashed by car of Lalubha. I have given
false reply that I am sitting on my field (Wadi) I am not involved.
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
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Akhabhai told me we are coming to you field (Wadi) for quarrel
be ready for quarrel at that time I myself along with my brother
Lakha Hira Koli, Ramsi Koli, Pravin, Dhama Gela Koli,
Devendrasinh , Iliyas Lalubha Vaghela, Bharat Mamu Koli, Dilip
Mamu Koli, Bhagubha Hansubha Vaghela, and his son Monsang
Umedsang Vaghela, Prabhu Gela Koli, Kheta Parbar Koli, Vanraj
Karshan Koli, Dinesh Darshan Koli were present their I have told
this fact to them that Jeseng Umat along with his men are coming
at our wadi for quarreling with us so we all armed with weapons
we came near by our field's boundary and we all are become
ready for quarrel and sat nearby Lakhman Bijal's field and that
time white color jeep came that at about place near about wadi
Ramesh Bhavan Rathod come down for jeep along with dhariya
in his hand, Akhabhai came down with his gun, Akhabhai abused
me "I have pride to save" at that time Ramesh Bhavan Rathod
given blow with dhariya I have tried to save myself and I have
lifted up my left hand so dhariya blow caused injury in my left
hand I have fallen down on earth and blood coming out for my left
hand at the time Akhabhai given blow of gun on my brother namely
Ramsi on his hand- at that time Akha son Lalji - Amra Jeseng
Umat - Vela Pancha Umat - Petha Bhavan Rathod - Akhabhai's
younger son Dharmendra - Papu Gabha Umat, came down from
jeep and tried to attack on me at that time my brother Pravin
Dhama Gela Koli, Devendrasinh, Iliyas Lalubha Vaghela, Bharat
Mamu Koli, Dilip Mamu Koli, Bhagubha Hansubha Vaghela, and
his son Mohansang Umedsang Vaghela, Prabhu Gela Koli, Kheta
Parbat Koli, Vanraj Karsan Koli, Dinesh Karsan Koli, came along
with the arms at that time Akho and his person's tried to ran away
with the Scorpio jeep. My brother namely Lakhabhai dashed that
jeep by tractor at that time my another cousin brother Kanji Bijal
came with the another tractor and Lakhman Bijal came with the
sumo jeep and dashed with the jeep of Akhabhai. At that time our
ladies came down during quarrel Ramesh Bhavan Rathod- Papu
Gabha Umat - Akhabhai Son Dharmendra ran away at that time
the our persons who came there assaulted with the dhariya and
lakdi's on Akhabhai- Velabhai-Pethabhai-Amrabhai And Lalji and
this quarrel i have been injured..."
5. Vishan was arrested on 18 May 2020. A further statement of
the informant in the original FIR dated 9 May 2020 was recorded on 3
June 2020. After investigation, the charge-sheet was submitted by the
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investigating officer against Vishan and twenty-two co-accused. On 31
August 2020, an application for interim bail moved by Vishan on medical
grounds was rejected by the Sessions Judge, Bhachau, Kachchh taking
note of the fact that the accused had produced fake documents for the
purpose of obtaining bail. An application seeking regular bail under Section
439 of the CrPC was rejected by the Additional Sessions Judge, Bhachau
on 4 December 2020.
6. Among the twenty-two accused, who are named in the chargesheet, these proceedings arise out of the applications for bail which were
moved before the High Court on behalf of the six persons namely:
Vishan Heera Koli
-
Accused no.6
Pravin Heera Koli
-
Accused no.10
Sidhdhrajsinh Bhagubha Vaghela
-
Accused no.13
Kheta Parbat Koli
-
Accused no.15
Vanraj Karshan Koli
-
Accused no.16
Dinesh Karshan Akhiyani (Koli)
-
Accused no.17
7. The orders passed by the High Court granting bail to the above
persons are tabulated below:
At this stage, it is necessary to note that A-10 and A-15 were both
granted bail on 21 December 2020 on the basis of parity claimed on the
basis of the order dated 22 October 2020 granting bail to A-13. The
orders dated 19 January 2021 granting bail to A-16 and to A-17 on 20
January 2021 are also based on parity.
8. Chronologically, the first order of the High Court granting bail
was to Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020.
The High Court observed thus:
Sl No.
Name of the accused
Accused No.
Date of order
1
Vishan Heera Koli
6
21 December 2020
2
Pravin Heera Koli
10
21 December 2020
3
Sidhdhrajsinh Bhagubha Vaghela
13
22 October 2020
4
Kheta Parbat Koli
15
21 December 2020
5
Vanraj Karshan Koli
16
19 January 2021
6
Dinesh Karshan Akhiyani (Koli)
17
20 January 2021
"14. Having considered the rival submissions and having gone
through the materials on record, it appears that though the name of
the applicant and is shown in the FIR for the alleged offences
punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384,
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
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[2021] 7 S.C.R.
120B, 506 and 34 of the I.P.C., offence punishable under Section
25(1-b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat
Police Act, for the incident which took place on 9th May 2020, on
perusal of the charge-sheet papers, it appears that the complainant
in the subsequent statement dated 3rd June 2020, which has been
recorded after 25 days from the date of incident, the overt tact
which was attributed in the FIR, is missing. Though the complainant
has stated that the applicant was present, but no role is attributed
in the subsequent statement, which was recorded on 3rd June,
2020, wherein the details with regard to chronology of events which
took place at the place of the incident on 9th May 2020 is in effect
substituted by the complainant in the additional statement dated
3rd June 2020 by narrating altogether different details. At this
juncture, this Court is not going into the details of the incident as it
may affect the trial at the later point of time. Suffice is to say
prima facie appears that the applicant has been involved in alleged
offences due to pending proceedings of the previous offences and
enmity with the complainant side..."
9. In addition, the Single Judge observed that:
(i)
The accused was in jail since 19 May 2020;
(ii)
The charge-sheet had been filed after investigation; and
(iii)
The trial was likely to take time as 110 witnesses were to be
examined.
Reliance was placed on the decision of this Court in Sanjay
Chandra v. Central Bureau of Investigation2. The orders granting bail
to A-10 and A-15 (21 December 2020); to A-16 (19 January 2021); and
to A-17 (20 January 2021) are based on parity.
10. The main accused, Vishan (A-6) was granted bail on 21
December 2020. The reasons adduced by the Single Judge of the High
Court are contained in paragraphs 7, 8 and 9 of the order which reads
thus:
"7. Having heard the learned advocates for the parties and perusing
the material placed on record and taking into consideration the
facts of the case, nature of allegations, gravity of offences, role
attributed to the accused, without discussing the evidence in detail,
2 2012 (1) SCC 40
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this Court is of the opinion that this is a fit case to exercise the
discretion and enlarge the applicant on regular bail.
8. Looking to the overall facts and circumstances of the present
case, I am inclined to consider the case of the applicant.
9. This Court has also taken into consideration the law laid down
by the Hon'ble Apex Court in the case of Sanjay Chandra Vs.
Central Bureau of Investigation, reported in [2012] 1 SCC 40."
11. The allegations against all the accused in the present batch of
appeals arise out of the same incident. All the appeals have hence been
heard together.
12. Mr Vinay Navare, Senior Counsel and Ms Jaikriti S Jadeja,
Counsel have appeared in support of the appeals, all of which had been
filed by the informant. Mr Nikhil Goel, Counsel appeared on behalf of
the respondent-accused. In pursuance of the notice issued on 5 February
2021, Mr Aniruddha P Mayee has entered appearance on behalf of the
State of Gujarat. Insofar as the accused are concerned, the position before
the Court as recorded in the order dated 5 April 2021 reads thus:
"SLP (Crl) 790/2021
-
sole accused represented by Mr
Nikhil Goel
SLP (Crl) 1245/2021
-
sole accused - no appearance
entered despite service
SLP (Crl) 1246-47/2021
-
two accused represented by Mr
Purvish Malkan and Mr Nikhil Goel
SLP (Crl) 1248/2021
-
sole accused - no appearance entered
despite service
SLP (Crl) 1249/2021
-
sole accused represented by Mr J S
Atri, instructed by Mr Haresh
Raichura"
Since in two of the Special Leave Petitions namely Special Leave
Petition (Crl) Nos. 1245 and 1248 of 2021, no appearance had been
entered on behalf of the accused despite service of notice, this Court by
its order dated 5 April 2021 requested Mr Nikhil Goel to represent them.
We appreciate the able assistance which has been rendered by Mr Nikhil
Goel as an officer of the Court who has acted as an amicus curiae for
the two unrepresented accused as well.
13. Mr Vinay Navare, learned Senior Counsel appearing on behalf
of the appellant - informant submits that the primary basis on which the
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
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first order granting bail was passed by the High Court in the case of
Sidhdhrajsinh Bhagubha Vaghela (A-13) on 22 October 2020 is that while
the FIR was registered on 9 May 2020, the statement of the informant
was recorded on 3 June 2020, in which there have been substantial changes
in the genesis of the incident including the nature of the weapons. While
the allegation in the FIR is that Vishan (A-6) fired several rounds from a
rifle together with other persons, the subsequent statement would indicate
that the injuries had been caused not as a result of the use of firearms but
by a sharp weapon. The following submissions have been urged:
(i)
The cross FIR lodged by Vishan (A-6) on 13 May 2020
indicates that an incident had taken place on 9 May 2020;
(ii)
During the course of the incident, five homicidal deaths
resulted on the side of the informant (of the FIR dated 9 May
2020);
(iii)
The cross FIR lodged on 13 May 2020 contains a reference
to:
a.
The accused being armed with weapons;
b.
Pre-meditation on the part of the accused to waylay
and assault the side of the informant; and
c.
The assault being committed by the accused as the
deceased were attempting to flee after their vehicle had
been cornered by two tractors belonging to the side of
the accused.
(iv)
The presence of the accused and the role attracted to them
has been spelt out not only in the FIR but it is evident from
the cross FIR which was subsequently registered on 13 May
2020 at the behest of Vishan (A-6);
(v)
The cross FIR which sets out the version of the accused
would indicate that the accused were the aggressors; and
(vi)
Whether the five deaths were caused as a result of firearm
injuries (as alleged in the FIR dated 9 May 2020) or due to
dhariyas (as alleged in the statement recorded on 3 June 2020)
is not relevant at this stage. The presence of the accused, the
pre-meditation on their part, the assault committed on persons
belonging to the side of the informant and the resultant five
homicidal deaths which form the genesis of the incident should
be sufficient to deny bail.
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14. On the above premises, it has been urged that the High Court
has committed a grievous error in granting bail in the first instance on 22
October 2020 and in following the earlier order on the basis of parity.
Moreover, it has been submitted that the order granting bail to Vishan (A6), who is the main accused, on 21 December 2020 does not contain any
reasons whatsoever. It was urged that while granting bail, the Chief Justice
has merely observed that the Advocates who appeared on behalf of the
respective parties "do not press for further reasoned order". This, it was
urged, is an anathema to criminal jurisprudence. The High Court while
exercising its jurisdiction under Section 439, is required to apply its mind
objectively and indicate reasons for the grant of bail. This duty cannot be
obviated, it was urged, by recording that the Counsel for the parties did
not press for "a further reasoned order".
15. The submissions urged by Mr Vinay Navare, Senior Counsel
have been supported during the course of her submissions by Ms Jaikriti
S Jadeja. Learned counsel, in addition, adverted to the following
circumstances:
(i)
The registration of three prior FIRs against Sidhdhrajsinh
Bhagubha Vaghela (A-13);
(ii)
The observation of the High Court while granting bail that the
order would not be treated as precedent in any other case on
grounds of parity; and
(iii)
The grant of bail on the basis of parity alone to Vanraj Karshan
Koli (A-16), Kheta Parbat Koli (A-15), Pravin Heera Koli
(A-10) and Dinesh Karshan Akhiyani (Koli) (A-17).
16. Mr Aniruddha P Mayee, learned Counsel appearing on behalf
of the State of Gujarat has supported the submissions of the appellant in
the challenge to the orders granting bail on the following grounds:
(i)
The grant of bail by the High court to the six accused persons
in this batch is not justified having regard to the following
circumstances:
a.
The main accused Vishan (A-6) was a resident of Anjar
and had come to Hamirpur;
b.
There was an earlier incident which had taken place
involving an altercation with the deceased Akhabhai;
RAMESH BHAVAN RATHOD v. VISHANBHAI HIRABHAI MAKWANA
MAKWANA (KOLI) [DR. DHANANJAYA Y CHANDRACHUD, J.]
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c.
A compromise was arrived at in the course of the dispute
with the intervention of the community;
d. As the cross FIR by Vishan (A-6) narrates, on 9 May
2020- the conduct of the accused was pre-meditated;
e.
The incident took place at 1:00 pm when the side of the
informant (in the FIR dated 9 May 2020) was returning
from their fields for lunch when they were waylaid and
obstructed by vehicles of the accused both at the front
and the rear;
f.
The side of the accused had collected 22 persons for
executing a pre-meditated design to assault the group of
the informant with deadly weapons;
g.
Whether or not the rifles had been fired, the panchnama
notes the recovery of the weapons;
h.