Parity and Anticipatory Bail in India: Doctrinal Contours and Jurisprudential Trends

Parity and Anticipatory Bail in India: Doctrinal Contours and Jurisprudential Trends

1. Introduction

Anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (“CrPC”) is a preventive remedy that shields personal liberty by permitting an individual, who anticipates arrest for a non-bailable offence, to seek an order of release in advance. A recurrent argument in applications under Section 438 is the “principle of parity” – the plea that the applicant deserves relief because a similarly placed co-accused has already been admitted to bail. Although parity flows from the constitutional guarantee of equality in Article 14 and the rule of consistency, the doctrine is not absolute; it operates within the larger matrix of judicial discretion, public interest and the facts of each case. This article undertakes a doctrinal and jurisprudential analysis of parity in the specific context of anticipatory bail, drawing upon leading Supreme Court and High Court authorities.

2. Conceptual Framework

2.1 Statutory Setting

Section 438 CrPC empowers the High Court or Court of Session to direct that “in the event of such arrest” the applicant be released on bail “if it thinks fit”[19]. The open-textured phrase “if it thinks fit” vests the court with broad discretion, but simultaneously mandates a reasoned exercise of that discretion.

2.2 Constitutional Anchors

(a) Article 21 safeguards personal liberty and supplies the normative justification for liberal construction of bail provisions (Siddharam Mhetre[2]).
(b) Article 14 guarantees equality before law; the plea of parity is essentially an invocation of Article 14 in a bail setting[20].

2.3 Definition of Parity

The term “parity” denotes “the state or condition of being equal” (Nanha[9]). In bail jurisprudence it contemplates that similarly situated accused must ordinarily receive similar treatment, absent distinguishing features. Yet, as the Supreme Court cautioned in Prasanta Kumar Sarkar, parity cannot eclipse relevant factors such as gravity, role and antecedents[12].

3. Evolution of Anticipatory Bail Jurisprudence

3.1 Liberal Foundation

The Constitution Bench in Gurbaksh Singh Sibbia established that Section 438 should be interpreted liberally and is not confined to “extra-ordinary” cases[1]. Siddharam Mhetre reaffirmed this ethos, striking down artificial restrictions on anticipatory bail[2]. In Sushila Aggarwal, another five-judge Bench clarified that such bail is ordinarily not time-bound and may extend to the conclusion of trial, subject to conditions[3].

3.2 Checks on Judicial Discretion

Recent decisions have, however, underscored limits on discretion. In Nathu Singh the Court deprecated the High Court’s grant of a 90-day “protective window” after rejecting anticipatory bail, terming it jurisdictionally unsustainable[4]. Likewise, P. Chidambaram stressed that anticipatory bail remains exceptional in serious economic offences and custodial interrogation may outweigh liberty considerations[5].

4. Parity in Bail: Doctrinal Analysis

4.1 Positive versus Negative Equality

The Supreme Court repeatedly holds that Article 14 embodies positive equality; there is no “negative equality” to perpetuate an illegality. Thus, a wrongful grant of bail does not entitle a co-accused to identical relief (Chander v. State of U.P.[10]; Anuj Pokharna[18]).

4.2 Role-Based Distinction

Parity demands assessment of the applicant’s role. In Sabita Paul v. State of West Bengal the Court emphasised that even when the principal accused enjoys anticipatory bail, a secondary actor must independently satisfy the court that her role and necessity of custodial interrogation are comparable[11].

4.3 Omnibus Allegations and Presumption of Innocence

Where the FIR contains omnibus allegations, courts have shown readiness to extend parity. Nihal Singh v. State of M.P. released the husband on regular bail largely because the mother-in-law and brother-in-law were already enlarged and accusations were undifferentiated[22]. Similarly, Maldevbhai Nandaniya applied parity in anticipatory bail where the co-accused was already protected and the applicant’s custodial interrogation was unnecessary[17].

4.4 Temporal Dimension: Anticipatory versus Regular Bail

Several High Courts historically limited anticipatory bail to a short duration (Somabhai Patel[7]; Dipak Sheth[8]). The Constitution Bench in Sushila Aggarwal rendered such automatic cut-offs impermissible. Consequently, parity claims today often engage with scope rather than duration; if a co-accused enjoys an un-time-bound anticipatory bail, denying the same relief to a similarly situated applicant demands cogent reasons.

4.5 Erroneous Bail and the “Parity Paradox”

High Courts have grappled with the dilemma where an earlier order granting bail is perceived to violate settled principles. Chander v. State of U.P.[10] holds that a subsequent judge is neither bound to repeat the error nor empowered to cancel the earlier order suomotu; at best, the matter may be referred back to the granting judge. This framework maintains institutional comity while preventing a cascade of erroneous parity orders.

5. Synthesis of Reference Materials

  • Arun Sharma v. State of Haryana illustrates consensual resolution of matrimonial disputes; the High Court balanced liberty with victim compensation, ordering quashing of FIR upon payment. Though not a parity case, it exemplifies creative judicial conditioning within Section 482 CrPC, indirectly affecting parity debates where co-accused seek similar compromise-based relief[15].
  • Ravindra Saxena v. State of Rajasthan criticises perfunctory rejection of anticipatory bail; it underscores that Section 438 is a “beneficent provision” that must be “saved, not jettisoned”, thereby encouraging a nuanced, fact-sensitive parity analysis[14].
  • Dataram Singh v. State of U.P. centres on the presumption of innocence and the default rule of bail, fortifying the normative foundation for extending parity where no aggravating factors exist[6].
  • High Court decisions such as Laxmi Narayan Chaudhary[21] and Vijay Pratap Singh[16] typify pragmatic application: once a Division Bench protects one project director in a corruption FIR, parity is extended to another director unless differential material emerges.

6. Policy Considerations and Proposed Guidelines

  1. Structured Reasoning: Courts should expressly compare the applicant’s role, criminal history and need for custodial interrogation with that of the bailed co-accused, thereby making acceptance or rejection of parity transparently reasoned.
  2. Early Differentiation: Investigating agencies ought to particularise the role of each accused in the FIR/Case Diary; vague allegations fuel mechanical parity claims.
  3. Erroneous Orders: Where prior bail is palpably illegal, the State must promptly seek cancellation under Section 439(2) or approach appellate forums; absent such diligence, subsequent courts face the “parity paradox”.
  4. Consistency with Constitutional Values: While safeguarding equality, courts must remain vigilant that parity does not degenerate into per incuriam replication of flawed orders; Article 14 protects legitimate, not illicit, expectations.

7. Conclusion

The principle of parity operates as an important, though not overriding, consideration in anticipatory bail adjudication. Indian courts have consistently held that a co-accused’s bail order creates at best a persuasive precedent; it does not fetter judicial discretion nor annul the duty to weigh individual factors. The Constitution Bench judgments in Sibbia and Sushila Aggarwal supply the overarching constitutional mandate of liberty, while later pronouncements, including Nathu Singh and Sabita Paul, remind courts that discretion must remain situational, calibrated and immune from the tyranny of mechanical equality. A coherent approach to parity therefore lies in harmonising Article 14’s equality with Article 21’s liberty, mediated through the statutory prism of Section 438 CrPC and guided by principled judicial reasoning.

Footnotes

  1. Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
  2. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.
  3. Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1.
  4. Nathu Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 402.
  5. P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24.
  6. Dataram Singh v. State of U.P., (2018) 3 SCC 22.
  7. Somabhai Chaturbhai Patel v. State of Gujarat, (1976) Guj HC.
  8. The State of Gujarat v. Dipak Jaswantlal Sheth, (1998) Guj HC.
  9. Nanha s/o Nabhan Kha v. State of U.P., 1993 Cri LJ 938 (All HC).
  10. Chander alias Chandra v. State of U.P., 1998 All LJ 870.
  11. Sabita Paul v. State of West Bengal, (2024) SC.
  12. Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496.
  13. Shobhan Singh Khanka v. State of Jharkhand, (2012) 4 SCC 684.
  14. Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC (Cri) 884.
  15. Arun Sharma v. State of Haryana, 2019 SCC OnLine P&H 460.
  16. Vijay Pratap Singh v. State of U.P., Anticipatory Bail Appl. No. 1864/2020 (All HC).
  17. Maldevbhai Devabhai Nandaniya v. State of Gujarat, Cr.M.A. 8063/2020 (Guj HC).
  18. Anuj Pokharna @ Mikki Jain v. State of Rajasthan, (2024) Raj HC.
  19. Code of Criminal Procedure, 1973, s. 438.
  20. Constitution of India, art. 14.