Interplay of Bail Jurisprudence and the Parity Principle for Co-Accused in India

Interplay of Bail Jurisprudence and the Parity Principle for Co-Accused in India

Introduction

Bail occupies a pivotal space in Indian criminal jurisprudence, balancing the presumption of innocence with societal interest in a fair trial. When several persons are arraigned in the same crime, courts are routinely invited to apply the parity principle—i.e., to grant or deny bail to one accused because similarly situated co-accused have been so treated. The doctrine appears intuitive, yet Supreme Court authority reveals that parity is not absolute; it is conditioned by individual roles, antecedents, and the likelihood of interference with justice. This article critically analyses the statutory architecture, leading case-law, and emerging themes governing bail for co-accused in India.

Statutory Framework

  • Sections 437 & 439 CrPC confer wide discretion on courts to grant bail in non-bailable offences, emphasising “reasonable grounds” and “interest of justice”.[12][13]
  • Section 438 CrPC provides pre-arrest (anticipatory) bail where arrest is not warranted.[14]
  • Sections 41 & 41A CrPC, read with Satender Kumar Antil, impose thresholds for arrest; violation may itself justify bail.[15][11]
  • Special statutes (e.g., Section 37 NDPS Act) reverse the presumption by requiring satisfaction of twin conditions before release.[17]

Genesis and Evolution of the Parity Principle

The notion that “similarly placed” co-accused deserve similar bail treatment can be traced to Balchand, where the Supreme Court articulated “bail, not jail,” but cautioned that liberty yields to compelling circumstances.[10] Subsequent jurisprudence has refined the doctrine.

Supreme Court Jurisprudence: Key Milestones

1. State of U.P. v. Amarmani Tripathi (2005)

The Court cancelled bail granted on purported parity, highlighting the accused’s influence, criminal history, and evidence of witness intimidation.[2] It underscored that parity cannot eclipse concerns of tampering with the course of justice.

2. Prasanta Kumar Sarkar v. Ashis Chatterjee (2010)

Enumerated a consistent checklist—prima facie case, gravity, severity of punishment, likelihood of fleeing or tampering—to test bail orders, warning that non-reasoned parity orders are vulnerable.[4]

3. Mahipal v. Rajesh Kumar (2019)

Set aside a parity-based bail order for want of reasoning, reaffirming that discretion under Section 439 must be “legitimate, transparent and judicious.”[3]

4. Prabhakar Tewari v. State of U.P. (2020)

Conversely, the Court upheld co-accused bail after finding a speaking order addressing role, custody period and absence of intimidation.[1] The decision illustrates that well-reasoned parity can withstand appellate scrutiny.

5. Ramesh Bhavan Rathod v. Vishanbhai Makwana (2021)

Rejected wholesale parity where the High Court failed to consider offence gravity and distinct roles, calling such approach “non-application of mind.”[5]

6. Neeru Yadav v. State of U.P. (2014)

Cancelled bail despite co-accused having been released, because the applicant was the principal shooter with extensive antecedents—reinforcing individualised assessment.[7]

7. Successive Applications and Judicial Discipline

Kalyan Chandra Sarkar held that successive bail pleas must rest on fresh grounds; ignoring earlier Supreme Court findings amounts to judicial indiscipline.[6] Dolat Ram distinguished between refusal and cancellation, making the latter permissible only on “very cogent reasons.”[8]

Analytical Themes Emerging from the Case-Law

A. Individualised Assessment v. Mechanical Parity

Parity is a “guiding” but not “governing” principle; courts must dissect:

  • Nature of participation (shooter v. driver);
  • Antecedents (repeat offenders v. first-time accused);
  • Role in tampering (e.g., Amarmani Tripathi).

B. Reasoned Orders as Safeguards

Mahipal, Rathod and Prasanta Kumar Sarkar converge on the need for speaking orders. Failure to articulate why parity applies renders an order perverse.

C. Custodial Duration and Delay

While prolonged incarceration strengthens the liberty claim (Prabhakar Tewari), courts still weigh public interest and seriousness of crime. High Courts in Dalip Singh and Sant Ram have relied on the principle that “freedom cannot be curtailed indefinitely.”

D. Successive Bail & Suppression of Facts

The Allahabad High Court in Rama Shankar Singh denounced concealment of earlier rejections. Kalyan Chandra Sarkar mandates fresh circumstances for repeat pleas, preserving judicial time and consistency.

E. Special Statutes and Reverse Onus

In NDPS cases, as illustrated by Dheeraj Kumar Shukla, parity will not override the statutory “twin conditions” under Section 37; an erroneously granted co-accused bail cannot be a benchmark.

Comparative High Court Responses on Co-Accused Bail

Recent High Court rulings display varied fidelity to Supreme Court norms:

  • Rahul Kesharwani v. State of Chhattisgarh emphasised administrative consistency by routing co-accused applications to the same bench, promoting judicial discipline.
  • Pinki v. State of U.P. (2025) upheld parity where custody was lengthy and no tampering was alleged, illustrating a liberal approach consonant with Prabhakar Tewari.
  • Manohar v. State of M.P. faulted the Sessions Court for ignoring High Court bail to co-accused, confirming that parity, though not absolute, cannot be disregarded without reasons.

Guidelines Synthesised for Lower Courts

  1. Prima Facie Involvement: Ascertain role differentiation; parity is impermissible where roles diverge materially.
  2. Reasoned Determination: Orders must explicitly apply factors enumerated in Prasanta Kumar Sarkar; brevity cannot substitute reasoning.
  3. Antecedents & Likelihood of Tampering: Prior convictions or credible threats override parity.[9]
  4. Statutory Embargos: Where special statutes impose reverse onus, courts must first satisfy statutory conditions before invoking parity.
  5. Successive Pleas: Fresh grounds or change of circumstances are sine qua non; mere bail to co-accused is insufficient after earlier rejection.[6]
  6. Compliance with Arrest Protocols: Violations of Sections 41/41A CrPC fortify the bail claim (Satender Kumar Antil), including for co-accused.

Conclusion

Indian bail jurisprudence affirms that liberty is the rule, yet not a fait accompli even where a co-accused has been enlarged. The Supreme Court has crafted a nuanced equilibrium: parity serves as an equitable anchor, but cannot eclipse individualized scrutiny, statutory mandates, or the integrity of the judicial process. Future adjudication must adhere to the structured reasoning demanded by Mahipal and Rathod, ensuring that the quest for consistency does not degenerate into mechanical mimicry.

Footnotes

  1. Prabhakar Tewari v. State of Uttar Pradesh, (2020) 11 SCC 648.
  2. State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21.
  3. Mahipal v. Rajesh Kumar alias Polia, 2019 SCC OnLine SC 1556.
  4. Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496.
  5. Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, 2021 SCC OnLine SC 335.
  6. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.
  7. Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508.
  8. Dolat Ram v. State of Haryana, (1995) 1 SCC 349.
  9. Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598.
  10. State of Rajasthan v. Balchand, (1977) 4 SCC 308.
  11. Satender Kumar Antil v. Central Bureau of Investigation, 2022 SCC OnLine SC 825.
  12. Code of Criminal Procedure, 1973, s. 439.
  13. Code of Criminal Procedure, 1973, s. 437.
  14. Code of Criminal Procedure, 1973, s. 438.
  15. Code of Criminal Procedure, 1973, ss. 41 & 41A.
  16. Indian Penal Code, 1860, s. 302.
  17. Narcotic Drugs and Psychotropic Substances Act, 1985, s. 37.
  18. Pinki v. State of Uttar Pradesh, (2025) SCC (to be reported).