Yes, an accused can seek bail on the ground that a co accused has already been granted bail. This principle is known as the principle of parity in bail jurisprudence. If the role, allegations, evidence, and circumstances of the accused are substantially similar to those of a co accused who has already been granted bail, the accused can rely upon the earlier bail order and request similar relief. However, parity is not an absolute right. The court will independently examine whether the accused stands on the same footing as the co accused. If there are distinguishing features such as a more serious role, criminal antecedents, recovery of incriminating material, or a greater likelihood of influencing witnesses, the court may refuse bail despite another accused having been released.
As an experienced Criminal Lawyer practicing in Indore, one of the most common grounds raised in bail applications is that one or more co accused have already been granted bail by the same court or a higher court. While this is undoubtedly an important consideration, many people mistakenly assume that once one accused receives bail, every other accused automatically becomes entitled to bail. That is not the legal position. Courts apply the principle of parity cautiously and examine the individual role of each accused before granting relief.
This article explains the concept of parity in bail, the relevant provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the factors considered by courts, the procedure for seeking bail on the ground of parity, practical guidance, the role of an experienced criminal lawyer, and answers to frequently asked questions.
Understanding the Concept of Bail
Bail is the temporary release of an accused person from custody during investigation, inquiry, or trial, subject to conditions imposed by the court.
The primary purposes of bail are:
- To ensure the presence of the accused before the court.
- To uphold the constitutional guarantee of personal liberty.
- To prevent unnecessary pre trial detention.
- To balance the rights of the accused, the victim, and society.
Grant of bail does not amount to an acquittal, nor does rejection of bail amount to a finding of guilt.
What Is Meant by a Co Accused?
A co accused is another person who is alleged to have participated in the same offence or criminal transaction and is prosecuted in the same criminal case.
For example, if four individuals are named in one FIR for allegedly committing robbery, each of them is a co accused of the others.
What Is the Principle of Parity?
The principle of parity means that similarly placed accused persons should ordinarily receive similar treatment from the courts unless there are valid reasons to distinguish between them.
This principle promotes:
- Consistency in judicial decisions.
- Equality before law.
- Fairness in criminal proceedings.
However, parity applies only where the facts and circumstances are substantially similar.
Constitutional Basis
Article 14 of the Constitution of India
Article 14 guarantees equality before law and equal protection of the laws.
The principle of parity is closely connected with Article 14 because similarly situated accused should ordinarily be treated alike.
Article 21 of the Constitution of India
Article 21 protects the right to life and personal liberty.
Courts must balance this constitutional protection with the interests of justice while deciding bail applications.
Relevant Legal Provisions Under BNSS, 2023
The Bharatiya Nagarik Suraksha Sanhita, 2023 contains the principal provisions relating to bail.
Section 478 BNSS
Provides for bail in bailable offences.
Section 480 BNSS
Deals with bail in non bailable offences.
Section 481 BNSS
Provides special consideration for women, children, sick persons, and infirm persons.
Section 482 BNSS
Deals with anticipatory bail.
Section 483 BNSS
Deals with regular bail.
Confers powers upon the High Court and the Court of Sessions regarding bail.
Although the BNSS does not expressly use the term “parity,” the principle has evolved through judicial interpretation and is regularly applied by courts while exercising their discretionary powers.
Is Bail Automatic Because a Co Accused Has Been Granted Bail?
No.
Grant of bail to one accused does not automatically entitle every other accused to bail.
The court examines:
- The role attributed to each accused.
- The evidence against each accused.
- Criminal antecedents.
- Recovery of weapons or stolen property.
- Statements of witnesses.
- Possibility of absconding.
- Possibility of influencing witnesses.
Only if these factors are substantially similar does the principle of parity become applicable.
Why Does the Court Apply the Principle of Parity?
The objective is to avoid inconsistent judicial decisions.
Suppose two accused persons are alleged to have performed identical roles in the same incident.
If one is granted bail and there is no distinguishing feature regarding the other, denying bail to the second accused may appear arbitrary.
Parity therefore promotes fairness and consistency.
Situations Where Parity May Apply
The principle of parity is more likely to apply where:
Identical Allegations
Both accused are alleged to have committed the same acts.
Similar Evidence
The prosecution relies upon identical evidence against both accused.
No Distinguishing Role
Neither accused is alleged to have played a dominant role.
Similar Criminal History
Both accused have comparable antecedents.
Same Stage of Investigation
The investigation stands at the same stage regarding both accused.
Same Bail Conditions
The circumstances surrounding the earlier bail order remain unchanged.
Situations Where Parity May Not Apply
Parity may not be available where:
Different Role
One accused is alleged to be the principal offender while another played a minor role.
Recovery of Weapon
A weapon or incriminating material is recovered from one accused but not from the other.
Criminal Antecedents
One accused has a long criminal history.
Threat to Witnesses
One accused has attempted to influence witnesses.
Absconding
One accused remained absconding or was declared a proclaimed offender.
Violation of Previous Bail
One accused earlier violated bail conditions.
Additional Evidence
Fresh evidence exists against one accused but not against the co accused.
Importance of the Earlier Bail Order
When seeking parity, the accused should produce a certified copy of the bail order granted to the co accused.
The court examines:
- The reasons for granting bail.
- The allegations considered.
- The evidence discussed.
- The conditions imposed.
If the reasoning equally applies to the applicant, the chances of obtaining bail improve.
Can the Court Refuse Bail Despite Parity?
Yes.
Parity is an important consideration but not an inflexible rule.
The court may refuse bail where it finds material differences between the applicant and the co accused.
Judicial discretion continues to play a central role.
Factors Considered by the Court
While deciding a bail application based on parity, courts generally consider:
Nature and Gravity of the Offence
Serious offences require closer scrutiny.
Individual Role
The precise role attributed to the applicant.
Prima Facie Evidence
The available evidence against the applicant.
Criminal Antecedents
Previous criminal cases and convictions.
Stage of Investigation
Whether custodial interrogation is still necessary.
Possibility of Absconding
Whether the accused is likely to evade trial.
Possibility of Witness Intimidation
Protection of witnesses remains an important consideration.
Procedure for Seeking Bail on the Ground of Parity
Step 1
Obtain a copy of the bail order granted to the co accused.
Step 2
Compare the allegations against both accused.
Step 3
Identify similarities in role, evidence, and circumstances.
Step 4
Prepare a detailed bail application explaining why parity applies.
Step 5
File the application before the competent court.
Step 6
The prosecution presents objections.
Step 7
The defence demonstrates that there is no material distinction.
Step 8
The court decides whether parity justifies grant of bail.
Practical Examples
Example 1
Two accused are alleged to have jointly participated in a financial fraud. No recovery has been made from either accused. One accused is granted bail after completion of the investigation. The second accused successfully seeks bail on the ground of parity.
Example 2
Four persons are prosecuted for an assault. Three accused are alleged to have caused simple injuries, while one accused is alleged to have used a deadly weapon causing grievous injuries. Bail granted to the first three accused does not automatically entitle the fourth accused to bail because his role is substantially different.
Example 3
Two co accused are implicated in an offence under a special statute. One accused has no criminal history, while the other has multiple pending criminal cases and previously violated bail conditions. The court grants bail to the first accused but refuses parity to the second.
Can Parity Be Claimed After Filing of the Charge Sheet?
Yes.
The filing of the charge sheet often strengthens a parity based application because the prosecution case becomes clearer and the need for custodial interrogation may no longer exist.
Can Higher Courts Grant Bail on Parity?
Yes.
The Sessions Court and the High Court may grant bail by applying the principle of parity if the facts justify such relief.
Common Mistakes Made by Applicants
Many accused weaken their applications by:
- Relying upon parity without comparing the facts.
- Concealing criminal antecedents.
- Ignoring distinguishing features.
- Failing to produce the earlier bail order.
- Misrepresenting the role attributed to the accused.
- Filing incomplete applications.
A carefully prepared application is essential.
Role of an Experienced Criminal Lawyer
An experienced Criminal Lawyer performs several important functions.
Examining the Earlier Bail Order
The lawyer analyses the reasoning adopted by the court while granting bail to the co accused.
Comparing Roles
Every allegation against the applicant and the co accused is carefully examined.
Identifying Distinguishing Features
Potential weaknesses are addressed before filing the application.
Drafting Persuasive Legal Arguments
The application clearly demonstrates why the principle of parity should be applied.
Addressing Prosecution Objections
The lawyer explains why any alleged differences are not material.
Protecting Constitutional Rights
The lawyer invokes Articles 14 and 21 to ensure fair and equal treatment before the law.
Practical Guidance
If your co accused has already been granted bail:
- Obtain a certified copy of the bail order immediately.
- Compare the allegations carefully.
- Do not assume that parity guarantees bail.
- Fully disclose your criminal history.
- Cooperate with the investigation.
- Avoid contacting witnesses.
- Engage an experienced Criminal Lawyer to prepare a comprehensive parity based bail application.
Frequently Asked Questions (FAQs)
1. Can an accused seek bail because a co accused has already obtained bail?
Yes.
2. What is the principle of parity?
It is the principle that similarly situated accused should ordinarily receive similar treatment regarding bail.
3. Does parity guarantee bail?
No.
4. Can the court refuse bail despite parity?
Yes.
5. Does the role of the accused matter?
Yes.
6. Can criminal antecedents affect parity?
Yes.
7. Is a certified copy of the earlier bail order important?
Yes.
8. Can different evidence justify different decisions?
Yes.
9. Can parity be claimed before the High Court?
Yes.
10. Can parity be claimed after filing of the charge sheet?
Yes.
11. Can recovery of a weapon affect parity?
Yes.
12. Does absconding affect parity?
Yes.
13. Can previous violation of bail conditions affect parity?
Yes.
14. Can different injuries attributed to different accused affect parity?
Yes.
15. Can parity be claimed in serious offences?
Yes, but the court will closely examine whether the applicant is truly similarly placed to the co accused.
16. Can the prosecution oppose a parity based bail application?
Yes.
17. Does completion of investigation improve the chances of parity?
Yes.
18. Can subsequent evidence affect parity?
Yes.
19. Does the court independently examine every bail application?
Yes. Even where parity is claimed, the court independently assesses the facts and legal considerations applicable to the applicant.
20. Should an experienced Criminal Lawyer be consulted before filing a parity based bail application?
Yes. A lawyer can compare the allegations, analyse the earlier bail order, identify distinguishing features, prepare persuasive legal submissions, and effectively present the applicant’s case before the court.
Conclusion
Yes, an accused can seek bail on the ground that a co accused has already been granted bail, but the grant of bail to one accused does not automatically entitle every other accused to the same relief. Courts apply the principle of parity to ensure fairness and consistency in judicial decision making, particularly where the allegations, evidence, role, criminal antecedents, and surrounding circumstances are substantially similar. However, parity is only one factor among many. The court retains full discretion to refuse bail where the applicant has a more significant role, stronger evidence exists against them, there are criminal antecedents, recovery of incriminating material has been made, or there is a genuine apprehension of absconding or witness intimidation.
A successful parity based bail application requires careful comparison of the earlier bail order with the facts relating to the applicant. Merely asserting that another accused has been released is rarely sufficient. The application must demonstrate that there is no material distinction between the applicant and the co accused and that continued custody would be inconsistent with the principles of equality and personal liberty embodied in Articles 14 and 21 of the Constitution.
As an experienced Criminal Lawyer practicing in Indore, I regularly represent clients seeking bail on the ground of parity. A well prepared application supported by the earlier bail order, accurate analysis of the prosecution case, relevant legal provisions, and persuasive advocacy can substantially improve the chances of obtaining bail where the applicant is genuinely similarly situated to a co accused who has already been granted the benefit of release.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304