The Uttarakhand High Court has affirmed that bail cannot be denied solely on the basis of gravity of offence when a co-accused with an identical role has already been released, reinforcing the doctrine of parity in bail jurisprudence. The judgment clarifies that the admissibility of a dying declaration must be tested at trial, not at the bail stage.
Background & Facts
The Dispute
The present bail application arises from FIR No. 69 of 2025, registered at Police Station Gadarpur, District Udham Singh Nagar, under Sections 103(1) and 3(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The accused, Saurabh Baba, aged 22, is alleged to have participated in a fatal assault near Gularbhoj Dam on 14.03.2025, during which Gurdeep Singh was shot and later died in transit to a medical facility.
Key Facts
- The incident occurred on 14.03.2025 at approximately 5:45 p.m. near Gularbhoj Dam.
- The deceased, Gurdeep Singh S/o Daljeet Singh, and his cousin Jagroop Singh were allegedly attacked by five individuals: Harshit Bora, Gagan, Ravinder alias Billu, Saurabh Baba, and Gursharan Singh alias Gagan.
- Harshit Bora is alleged to have fired the fatal shot at the deceased’s chest and pointed a firearm at Jagroop Singh.
- The deceased succumbed to injuries during transit to a hospital.
- Saurabh Baba was arrested and has been in judicial custody since 18.03.2025.
- The prosecution relies on a dying declaration recorded by the Investigating Officer in the presence of a Medical Officer, stored on a pen drive.
- A co-accused, Gursharan Singh alias Gagan, who is alleged to have played an identical role, was granted bail by the same Court on 26.02.2026.
Procedural History
- 14.03.2025: Incident occurred near Gularbhoj Dam.
- 18.03.2025: Applicant arrested and placed in judicial custody.
- 26.02.2026: Co-accused Gursharan Singh alias Gagan granted bail by the same Court.
- 01.04.2026: Present bail application heard and decided by the Uttarakhand High Court.
The Parties' Positions
Applicant (Saurabh Baba): Claims false implication; asserts he was not the shooter and played a minor role. Relies on the bail granted to co-accused Gagan on identical facts to invoke the principle of parity.
Respondent (State of Uttarakhand): Opposes bail, arguing the dying declaration is consistent with the FIR and corroborated by witness statements, indicating serious involvement.
Complainant (through counsel): Opposes bail, emphasizing the dying declaration’s reliability and risk of witness tampering if the accused is released.
Relief Sought
The Applicant seeks release on bail pending trial, arguing that his role is not that of the principal offender and that the co-accused with an identical role has already been granted bail.
The Legal Issue
The central question was whether bail can be granted to an accused under the BNSS, 2023, on the ground of parity with a co-accused, even when the prosecution relies on a dying declaration, and whether such a declaration must be accepted as conclusive at the bail stage.
Arguments Presented
For the Appellant/Petitioner
Learned counsel for the Applicant argued that the Applicant is not the person who fired the fatal shot, and his role is substantially similar to that of co-accused Gursharan Singh alias Gagan, who was already granted bail on 26.02.2026. He relied on the settled principle of parity in bail jurisprudence, as affirmed in K. S. Puttaswamy v. Union of India and State of Rajasthan v. Balchand, to contend that differential treatment without reasonable classification violates Article 14 of the Constitution. He submitted that the dying declaration, while relevant, cannot be the sole basis to deny bail at the pre-trial stage.
For the Respondent/State
The Additional Government Advocate contended that the dying declaration is a crucial piece of evidence, recorded in the presence of a Medical Officer, and corroborates the prosecution’s version. He argued that the gravity of the offence under Section 103(1) BNSS - involving culpable homicide not amounting to murder - warrants denial of bail. He further submitted that the Applicant may influence witnesses or flee, given the seriousness of the charge.
The Court's Analysis
The Court examined the nature of the Applicant’s alleged involvement and the procedural posture of the case. It noted that the Applicant is not the individual who fired the fatal shot, and that the co-accused with an identical role has already been released on bail. The Court emphasized that the principle of parity is not a mere procedural formality but a constitutional safeguard against arbitrary discrimination.
"As regards the dying declaration, the same shall be considered at the stage of trial, as it involves various legal aspects concerning its admissibility."
The Court clarified that at the bail stage, the court does not undertake a final evaluation of evidence or determine the veracity of the dying declaration. Such an assessment is reserved for trial, where the accused has the right to cross-examine witnesses and challenge the authenticity of the recording. The Court further observed that the mere existence of a dying declaration does not ipso facto negate the right to bail, particularly where the accused is not the principal offender.
The Court also rejected the argument that the gravity of the offence alone justifies denial of bail, citing Arnesh Kumar v. State of Bihar, which holds that bail is the rule and jail the exception. The Court held that the Applicant’s custody since 18.03.2025, coupled with the grant of bail to a co-accused under identical circumstances, creates a compelling case for parity.
The Verdict
The Applicant succeeded. The Court allowed the bail application and directed the Applicant’s release upon executing a personal bond and furnishing two reliable sureties, each in the same amount, to the satisfaction of the Court concerned. All pending applications stand disposed of.
What This Means For Similar Cases
Parity in Bail Is a Constitutional Imperative
- Practitioners must raise the principle of parity whenever a co-accused with a materially identical role has been granted bail.
- Courts cannot deny bail to one accused while granting it to another on identical facts without a rational, documented distinction.
- The doctrine of parity is not discretionary but rooted in Article 14 and the rule of law.
Dying Declarations Are Not Conclusive at Bail Stage
- A dying declaration, even if recorded properly, cannot be used to conclusively establish guilt or justify denial of bail.
- The admissibility, authenticity, and weight of a dying declaration must be tested during trial, not at the pre-trial stage.
- Courts must avoid pre-judging evidence at bail hearings, as this undermines the presumption of innocence.
Role Differentiation Matters
- Accused persons who are not the principal offenders - even in serious cases - are entitled to bail if their role is peripheral or similar to that of a granted co-accused.
- The burden shifts to the prosecution to demonstrate why one accused should be treated differently, especially where roles are indistinguishable.
