2021 INSC 0572 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1089 of 2021 (Arising Out of SLP (C riminal) No. 4072 of 2021 Shri Mahadev Meena ….. Appellant Versus P ra veen Rathore And Another ….. Respondents J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1. This appeal arises from a judgment dated 12 February 2021, of a Single Judge of the High Court of Judicature for Rajasthan at the Bench at Jaipur by which the first respondent has been enlarged on bail. The appellant is the father of the deceased at whose behest the f irst information report 1 was registered. 1 “FIR ” 9 (i) There was no delay on the part of the appellant in lodging the written intimation about the unnatural death of his son immediately after the incident on 14 February 2018; (ii) On 15 February 2018, a report of an unnatural death was registered under the provisions of Section 174 of the CrPC ; (iii) The police initially failed to register the FIR and it was only on 12 April, 2018 that FIR 69 /2018 was registered at PS Jhalabad Sadar; (iv) The charge sheet has been filed after investigation and t hough the case ultimately rests on circumstantial evidence, there is sufficient material on record, at this stage , to indicate the involvement of the first respondent; (v) The FSL report indicates the presence of the drug K etamine while even the earlier report which has been brought on record demonstrates pulmonary edema in the lungs of the deceased, which was a likely consequence of the administration of K etamine; (vi) The High Court in granting bail has failed to notice the seriousness and gravity of the crime involving the murder of the appellant’s son, who was employed with the I ntelligence Bureau in New Delhi; (vii) The first respondent is a constable employed with the Anti -Corruption Bureau at Jhalawar. There is every likelihood of the evidence being tampered with if the first respondent is enlarged on bail ; and 10 (viii) The circumstances which weighed with the High Court in granting bail to the co -accused Anita Meena, namely, that she had an infant of eleven months would demonstrate that bail was granted in special circumstance. T he first respondent who is a prime accused cannot claim parity . 11. On the other hand, Mr Siddhartha Dave, learned S enior Counsel, appearing on behalf of the first respondent submitted that: (i) At this stage when the court is dealing with the grant of bail, there is no material on record to impl icate the first respondent , where the case of the prosecution would rest on circumstantial evidence; (ii) The recovery of the diary of co- accused Santosh Nirmal regarding the handing over of the Ketamine vial to the first respondent would be inadmissible in evidence against the first respondent ; (iii) The recoveries which have been made over six months after the date of the incident , after the arrest of the first respondent on 18 August 2018, from a public place would have to be discounted; (i v) The initial FSL report did not contain a reference to the presence of K etamine while it is only in a subsequent FSL report that traces of the drug have been noticed. The burden would lie on the prosecution to explain the circumstances in which this fact emerged belatedly in the report dated 25 October 2018 nearly eight months after the date of incident ; 11 (v) The s tatement given by Chotmal Kashyap under Section 161 of the CrPC does not disclose that the deceased and the first respondent were last seen together . Further, Chotmal Kashyap has made a profession out of appearing as witness in many cases ; and (v i) The first respondent should be enlarged on bail on the ground of parity with the co- accused . 1 2. The order of the High Court contains serious infirmities. T he High Court has noted that there was a delay in lodging the FIR. Prima facie, the narration of facts in the earlier part of the judgment would indicate that on 14 February 2018, the appellant furnished a written intimation to the SHO at PS Jhalawar Sadar recording the unnatural death of his son who had travelled from New Delhi to Jhalawar , upon the discovery of the body close to the railway tracks at around 8.30 pm. The initial intimation recorded that while there was no injury on the body, the nails of the hands and f eet of the deceased were found to have turned blue and the death had occurred in suspicious circumstances. It was on the basis of this statement that on 15 February 2018, a n unnatural death was recorded under Section 174 of the CrPC. The post -mortem report of 15 February 2018 indicates that the cause of death would be determined once histopathological examination of the viscera is concluded. The report dated 10 March 2018, of the Department of Pathology at the Jhalawar Medical College & SRG Hos pital showed congestion in the lungs and pulmonary edema. O n 12 April 2018, the FIR was registered at PS Jhalawar Sadar. The FIR contains specific allegations against the first respondent in respect of (i) his 12 proximity to the wife of the deceased; (ii) the deceased having objected to the first respondent visit ing their marital home and directing him to cease doing so; and (iii) the call data recor ds and WhatsApp messages exchanged between the first respondent , the deceased and the co- accused Anita Meena. W hile the initial report of the FSL, Jaipur, dated 4 May 2018, was negative for metallic poison, ethyl and methyl alcohol, cyanide, alkaloids, b arbiturates, tranquillizers and insecticides , the report dated 25 October 2018 indicates that the remnants of the viscera samples had tested positive for the presence of K etamine, an anesthetic drug. 1 3. Having analyzed prima facie the circumstances in which the offence was committed and the nature of the allegations , it will be useful to refer to the precedents of this Court governing the grant of bail. A two -judge Bench of this Court in Ram Govind Upadhyay v. Sudharshan Singh 5 has listed the considerations that govern the grant of bail without attributing an exhaustive character to them. This Court has observed: “4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (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. 5 (2002) 3 SCC 598 13 ( 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, i n the normal course of events, the accused is entitled to an order of bail.” This Court has further elucidated on the power of the court to interfere with an order of bail in the following terms: “3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.” The above principles have been reiterated by a two judge Bench of this Court in Pra santa Kumar Sarkar v. Ashis Chatterjee 6: “9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe 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; 6 (2010) 14 SCC 496 14 ( 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. [internal citation omitted]” In Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana 7, a two judge Bench of this Court of which one of us (Justice DY Chandrachud) was a part, has held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. This Court observed: “26.…The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the 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 aspec t 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 has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass mus ter under the law.” 14. The High Court ought to have had due regard to the seriousness and gravity of the crime. The deceased was employed with the Intelligence Bureau in New Delhi. The first respondent is an employee of the Anti -Corruption Bureau at Jhalawar. The material which has emerged during the course of investigation cannot simply be ignored or glossed over (as the High Court has done). The first respondent himself being an employee of the Anti -Corruption Bureau at Jhalawar, 7 2021 (6) SCC 230 15 the likelihood of the evidence being tampered with and of the witnesses being suborned cannot be discounted. At this stage, when the Court is called upon to evaluate whether a case for the grant of bail has been made out , it is inappropriate to enter upon matters which woul d form the subject of the trial when evidence is adduced by the prosecution. Bail was granted to the co- accused Anita Meena primarily and substantially on the ground that she had a child of eleven months with her in jail. This c annot be the basis to a clai m of parity on the part of the first respondent. The first respondent cannot claim 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 him in the murder of the deceased. 1 5. For the above reasons, we have come to the conclusion that the High Court was in error in allowing the application for bail. The consideration that twenty -five witnesses out of seventy -six witnesses had been examined must equally be weighed with the seriousness of the crime, the role attributed to the first respondent and the likelihood of the evidence being tampered with if the first respondent were to remain on bail during the course of the trial. In this 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. 16 1 6. For the above reasons, we allow the appeal and set aside the impugned order of the High Court dated 12 February, 2021 enlarging the first respondent on bail. As a consequence, the first respondent shall surrender forthwith and be taken into custody. 17. All observations in this judgment are for the purpose of the present case and w ill not have a bearing on the final outcome of the trial. 1 8. Pending application(s), if any, stand disposed of. …….………….…………………................................J. [Dr Dhananjaya Y Chandrachud] …..…….………….…………………...........................J. [ BV Nagarathna] New Delhi; September 27, 2021.