While ruling on a very significant aspect of law pertaining to the bail of accused, the Karnataka High Court in a most learned, laudable, landmark and latest judgment titled Almas Pasha vs The State of Karnataka in Criminal Petition No. 11041 of 2023 that was pronounced as recently as on December 20, 2023 has minced just no words to hold that an accused is not entitled to bail merely because the co-accused was granted bail.
We thus see that the Court observed so while it rejected a bail petition of a man accused of murder and other offences under the Indian Penal Code, 1860 (IPC). The Court also made it indubitably clear that within the context of the plea for parity, it is essential to independently assess each offence and corresponding actions instead of indiscriminately adhering to bail orders for co-accused.
Additionally, we see that the petitioner’s claim pertaining to his father’s medical condition is deemed as an attempt to secure bail and is deemed unacceptable by the Karnataka High Court. So we thus see that the Karnataka High Court dismissed the petition. Very rightly so!
We must note that it is made clear by the Bench in the most initial stage of this notable judgment that:
This Criminal Petition is filed under Section 439 of Cr.P.C., praying to release him on bail in CR.No.178/2021 (Crl.Misc.No.279/2022) of Udayagiri Police Station, Mysuru District, for the offence P/U/S 143, 144, 147, 148, 341, 342, 323, 324, 364, 506, 307, 302 R/W 149 of IPC, pending on the file of Principal District and Sessions Judge, Mysore.
At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice M Nagaprasanna of the Karnataka High Court at Bengaluru sets the ball in motion by first and foremost putting forth in para 1 that:
The petitioner, accused No.2 in S.C. No.288 of 2022, arising out of crime No.178 of 2021 for offences punishable under Sections 143, 144, 148, 341, 342, 323, 324, 364, 307, 302 and 506 r/w Section 149 of the IPC, is before this Court seeking his enlargement on bail, for the second time.
As we see, the Bench specifies in para 3 that:
Facts in brief germane are as follows: The petitioner, after withdrawal of Criminal Petition No.134 of 2022, preferred Criminal Petition No.5141 of 2022, which comes to be rejected by an order of this Court on 12-08-2022. The petitioner is again before this Court seeking his enlargement on bail, claiming to be certain changed circumstances and the changed circumstances are that co-accused, accused No.3 and other accused have been enlarged on bail.
Briefly stated, the Bench after giving its anxious consideration and perusing the materials on record as mentioned in para 6 then on facts lays bare in para 7 that:
The facts that led to registration of crime are that, the deceased Mohammed Sarhan Sunain and one Rubina, a married couple were living together in the house of the complainant. Rubina had contacts with her old friends and was always in conversation with them over phone. Therefore, difference arose between Rabina and the brother the complainant. The brother of the complainant at the relevant point in time was working in a private company at Bangalore.
On 13-08-2021, the brother of the complainant and his wife, Rabina come back to Mysore and later developed a serious squabble. On 15-08-2021 at 9.00 a.m. the brother of Rabina, Khadir Pasha and her father Almas Pasha and one Ajmal Pasha along with others came in a Maruthi Van and abused the brother of the complainant, abducted him and later assaulted the brother of the complainant with a chopper and chopped off the hands and cut them into pieces. The brother of the complainant succumbed to the injuries sustained in the incident. It is then the four accused are dragged into the array of accused in Crime No.178 of 2021. The Police conduct investigation and file a charge sheet, which is now pending in S.C.No.288 of 2022.
The petitioner initially knocked at the doors of this Court in Criminal Petition No.134 of 2022 at the crime stage, withdrew it and filed a Criminal Petition No.5141 of 2022. This Court, in terms of its order dated 12-08-2022, rejected the petition and declined to enlarge the petitioner on bail. Accused No.3 who is enlarged on bail is enlarged on the ground that he required immediate surgery to the left knee and spine.
The Court had directed the State to secure the report of the medical condition of the said accused and the medical condition clearly indicated two factors – one that he had to undergo immediate surgery and the other, the mother of the petitioner therein was suffering from cancer. The other accused who is enlarged on bail was in Criminal Petition No.612 of 2022 in terms of the order dated 08-02-2022, long before rejection of bail of the present petitioner by this Court. Therefore, that would not become a changed circumstance.
Accused No.5 who is released on bail by the Apex Court is on 17-10-2023. Therefore, enlargement of accused Nos.3 and 4 by the co-ordinate Bench of this Court and accused No.5 by the Apex Court are factors which would not form semblance of changed circumstances for entertainment of the present petition.
Most significantly, the Bench clearly holds in para 8 that:
The allegation against the petitioner is as quoted supra. The findings in the charge sheet are that the petitioner was the first person to take out the chopper, cut the hands of the deceased, hit the deceased along with a stick and later cut the hands into pieces. Though the petitioner was not required for custodial interrogation, the findings are grave enough to anticipate any danger.
The plea of parity that is projected is not binding, as individual offences and individual overt acts are to be assessed and not to simply follow orders of other accused who are enlarged on bail and on parity grant the same. The parity at best is persuasive. The Apex Court in the case of Neeru Yadav V. State Of Uttar Pradesh (2016) 15 SCC 422 has elucidated the doctrine of parity while enlarging the accused on bail on the said ground. The Apex Court in the said case holds as follows:
8. It is interesting to note that the learned counsel for the appellant and the learned counsel for the State submitted that Respondent 2 is still in jail despite the order of bail as he is involved in so many cases. We will take up the said issue at a later stage. It is submitted by Mr Yadav, learned counsel for the appellant that despite the factum of criminal history pointed out before the High Court, it has given it a glorious ignore which the law does not countenance.
The solitary and the singular grievance which is propounded with solidity that the High Court should have dwelt upon the same and thereafter decided the matter. Mr Dash, learned Senior Counsel (though the State has not moved any application for setting aside the order of bail granted by the High Court for the reasons which are unfathomable) unhesitatingly accepted the said submission. In the additional affidavit, an independent chart has been filed by the State and we find that apart from the present case, there are seven cases pending against Respondent 2.
The chart of the said cases is reproduced below:
- FIR No. 664 of 2002 under Section 302 IPC, Police Station Kavi Nagar, Ghaziabad.
- FIR No. 558 of 2004 under Sections 392, 411 IPC, Police Station Kotwali, District Bulandshahar.
- FIR No. 14 of 2005 under Sections 398, 401, 307 IPC Police Station Noida, Gautam Budh Nagar.
- FIR No. 15 of 2005 under Sections 25, 27, Arms Act, Police Station Sector 49, Noida, Gautam Budh Nagar.
- FIR No. 1614 of 2008 under Sections 364, 302, 201 IPC, Police Station Sihani Gate, Ghaziabad.
- FIR No. 98 of 2005 under Section 2/3 Gangster Act, Police Station Sector 49, Noida, Gautam Budh Nagar.
- FIR No. 451 of 2012 under Section 60 Police Station Sector 49 Noida, Gautam Budh Nagar.
9. On a perusal of the aforesaid list, it is quite vivid that Respondent 2 is a history-sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a history-sheeter. The question, therefore, arises whether in these circumstances, should the High Court have enlarged him on bail on the foundation of parity.
10. In Ram Govind Upadhyay v. Sudarshan Singh [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688], it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter. In the said case, reference was made to Prahlad Singh Bhati v. NCT of Delhi [Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280: 2001 SCC (Cri) 674], and thereafter the Court proceeded to state the following principles: (Ram Govind case [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688], SCC p. 602, para 4)
- While granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
- Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
- While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
- Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
11. It is a well-settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are:
- the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence,
- reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and
- prima facie satisfaction of the Court in support of the charge. (See Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974])
12. In Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765], while dealing with the Court's role to interfere with the power of the High Court to grant bail to the accused, the Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a catena of judgments on that point. The Court proceeded to enumerate the factors : (SCC p. 499, para 9)
9. … among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:
- whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
- nature and gravity of the accusation;
- severity of the punishment in the event of conviction;
- danger of the accused absconding or fleeing, if released on bail;
- character, behaviour, means, position, and of the accused;
- likelihood of the offence being repeated;
- reasonable apprehension of the witnesses being influenced; and
- danger, of course, of justice being thwarted by grant of bail.
15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner
18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order [Budhpal v. State of U.P., 2014 SCC OnLine All 14815].
19. Resultantly, the appeal is allowed and the order [Budhpal v. State of U.P., 2014 SCC OnLine All 14815] passed by the High Court is set aside. If Respondent 2 is at large, he shall be taken into custody forthwith; and if he is still in custody because of certain other cases, he shall not be admitted to bail in connection with the present case. We make it clear that we have not expressed any opinion with regard to other cases and simultaneously we also clearly state that our observations in this case are only meant for purpose of setting aside the order granting bail and would have no impact or effect during the trial.
Therefore, merely because other accused are enlarged on bail, the petitioner would not get a right to get himself enlarged on bail. The submission that the petitioner/accused No.2 and accused No.5 are similarly placed is unacceptable as individual overt act by the petitioner has a chilling effect on any petition considered for enlargement on bail. A persuasive parity would not mean that the petitioner would also be enlarged on bail. The medical condition of his father projected is a ruse to get himself enlarged on bail which ground is also unacceptable.
As a corollary, the Bench concludes by holding and directing in para 9 that, For the aforesaid reasons, finding no merit in the petition, the petition stands rejected. However, the petitioner is at liberty to seek his enlargement on bail, on any other changed circumstances, than what is projected in the present petition at any future date before the appropriate Court, in accordance with law.
In summation, we thus see that the Karnataka High Court has made it indubitably clear that an accused cannot be held to be entitled to bail merely because the other co-accused are enlarged on bail. It is high time and all the Judges must pay heed to what the Karnataka High Court has laid down so very sagaciously, succinctly and significantly in this leading case! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
