Courtesy: Palak Behani
The principle of parity is a common term that reverberates in courtrooms among advocates. However, the law regarding the principle of parity is often misinterpreted by clients, and even young professionals. The principle of parity is not a law but a mere principle that means similar cases must be treated similarly.
This means that in cases where the co-accused face similar charges and similar circumstances, they should be treated similarly with respect to bail. Hence, if an accused is granted bail, the other accused having similar position and facing similar charges should also be granted bail. This principle is rooted in substantive equality enshrined under Article 14 of the Indian Constitution of India.
In the case of Javed Shaukat Ali Qureshi v State of Gujarat 2023 INSC 829, the Hon’ble Apex Court held as follows:
“15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.’’
IN WHAT CASES IS PARITY APPLICABLE?
Parity is applicable only in cases where co-accused are similarly situated or positioned, and face similar charges under similar circumstances. If there is any point of differentiation, principle of parity will not apply.
The principle of parity in cases of bail has been reiterated and strengthened by the Hon’ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another, (2022) 10 SCC 51, wherein the Hon’ble Apex Court held as follows:
“98. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offence shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India.”
However, Bail cannot be granted solely on the ground of parity and other circumstances regarding possibility of fleeing, tampering of evidence, among other factors must also be looked at. Although, parity is a valid ground, courts generally assess the merits of a bail application and consider the independent circumstances of the case.
The Hon’ble Supreme Court in the landmark case of Prahlad Singh Bhati vs. NCT, Delhi,(2001) 4 SCC 280, observed that:
“23. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing 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 or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing”
IF BAIL IS GRANTED FROM THE SESSIONS COURT, WILL PARITY BE AVAILABLE AS A GROUND BEFORE THE ALLAHABAD HIGH COURT?
Yes. Parity is available as a ground or factor before the Allahabad High Court even if bail is granted from the Sessions Court. However, this is not absolute and is not the sole basis for granting of bail, and it has been held time and again that parity cannot supersede judicial discretion in any manner. The Hon’ble Allahabad High Court may consider parity as a mere factor while granting or rejecting bail.
CAN THE GRAVITY OF THE OFFENCE OR ANY OTHER AGGRAVATING FACTOR NEGATE THE GROUND OF PARITY?
No. The gravity of the offence or any other aggravating factor cannot negate the ground of parity alone. Although, the seriousness of an offence is a relevant factor, it cannot be the sole reason to reject bail, if a similarly situated accused person has been granted bail. However, at the cost of reiteration, it must be stated the order granting bail must be a reasoned order. Any order without application of judicial mind and consideration of relevant facts and circumstances of the case would be susceptible to challenge.
In the case of Sanjay Chandra vs CBI, the Hon’ble Supreme Court held that:
“28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI”
However, it is seen as a trend that bail is granted solely on the ground of parity. This practice in Courts needs correction, as if the bail is granted solely on the ground of parity with co-accused, such an order may be legally unsustainable if the initial order is set aside.
In the case of Aminuddin vs. State of Uttar Pradesh and another, the Hon’ble Apex Court set aside the bail granted on the ground of parity as the order with which parity was claimed, was set aside by the Hon’ble Apex Court. Furthermore, the Hon’ble Apex Court stressed on the fact that any order granting bail must be necessarily followed by reason, and the same must reflect that there is judicial application of mind. Rubber stamp reasons must not be used while granting bail.
WHAT ARE THE FACTORS THAT THE COURT CONSIDERS ALONG WITH PARITY?
The Hon’ble Allahabad High Court is vested with the discretionary power of granting or rejecting bail under Section 483 of Bhartiya Nagarik Suraksha Sanhita 2023. The factors that resonate with the Court along with parity are as follows:
- Role of the Accused assigned
- Whether offence is heinous or grave and prima facie case is made out or not
- Criminal History of the accused
- Stage of the trial
- Incarceration of the accused in the case
- Nature of evidence available on record and other relevant factors
- Whether the other order with which parity is claimed is a reasoned order
With utmost humility and deference at command, it is at last expected that the courts must hold the sight of the forest and not get lost among the trees, keeping in mind the salutary principle of “Bail is the rule, and jail is the exception”, and not getting into the nitty gritties of the discretionary powers.