Parity in Bail: How Co-Accused Cases Should Be Compared

The idea behind parity

Parity asks whether an applicant whose position is materially similar to a co-accused already granted bail should be treated alike. It rests on consistency. It is not a rule that every co-accused must receive the same order, and it is weighed alongside the other considerations in the case.

The argument is only as good as the comparison behind it. A parity submission that says no more than "the co-accused has been granted bail" invites the response that the two stand on a different footing. The work lies in showing, from the record, where they stand.

Same FIR, different positions

Co-accused in one FIR frequently differ in ways that matter: one is alleged to have struck the blow while another is said to have been present; recovery is attributed to one and not another; one has other cases pending. Treating everyone named in the FIR as interchangeable overlooks exactly the distinctions a court is likely to examine.

Dimensions to compare

A comparison is easier to read, and harder to challenge, when it is laid out dimension by dimension with a source for each entry.

Alleged role and overt act

Role is usually the most important dimension. Quote the lines that describe each person's part. If the role of the co-accused who obtained bail is described in the same words as the applicant's, that is significant; if the applicant is alleged to have done something more specific, that is equally significant.

Recovery

Recoveries are often decisive in practice. Record who the recovery is attributed to, what was recovered, and under which memo. A recovery attributed to the applicant but not to the co-accused is a material difference that the comparison should state plainly.

Sections

Different accused may face different sections. Also separate provisions that apply to everyone at case level, such as those on common intention or conspiracy, from sections applied to a particular person. A shared case-level section does not by itself show that two people are alleged to have done the same thing.

Antecedents

Other cases involving either person should be described precisely: FIR or case number, sections, status and date. A pending FIR is an allegation, not a conviction. If nothing is known about one person's antecedents, record that as missing information rather than treating it as equivalent to none.

Custody

Time in custody can differ considerably between co-accused, particularly where arrests were staggered. Count custody from documented dates for each person.

Evidence attributed

Map each item of evidence to the person it concerns: which witness speaks to whom, whose identification is recorded, whose phone records are relied on. Evidence that concerns the case generally should not be counted against, or in favour of, one person in particular.

Reading the co-accused's bail order

The order granting bail to the co-accused is the other half of the comparison. It shows which features of the co-accused's position the court relied on. Note the court, the date, the reasons recorded, any conditions, and whether the order was reasoned or brief. If the order relied on something that does not apply to the applicant, the parity argument needs to address it.

• Which court passed the order, and at what stage of the case?
• What reasons are recorded?
• Were any features specific to the co-accused, such as age or health, relied on?
• Has the order been challenged, and with what result?

Material similarities and material differences

Once the grid is complete, sort the entries into three groups: dimensions where the record is the same for both, dimensions where it differs, and dimensions where information is missing for one or both. The differences deserve as much attention as the similarities; a submission that acknowledges a difference and explains why it is not material is usually more persuasive than one that ignores it.

Conflicting information, for example where the FIR and the charge sheet describe a role differently, should be recorded as a conflict with both sources, not resolved silently in the applicant's favour.

Common pitfalls

• Relying on the FIR alone when a charge sheet with more specific allegations is available
• Paraphrasing the co-accused's role from an application rather than quoting the record
• Overlooking a recovery or other case that distinguishes the applicant
• Treating a case-level section as proof of an identical role
• Ignoring the reasons actually given in the co-accused's bail order

An illustrative comparison

The following is a hypothetical example, not drawn from any real case, showing how the grid separates similarities from differences.

Here the role is described identically, which supports a parity submission. The recovery attributed only to B is a material difference that needs an answer, for instance by examining what the phone is said to show. The unverified antecedents are missing information to be resolved before the hearing, not a point in either direction.

Keeping the comparison current

A comparison prepared at one stage can go stale. A supplementary charge sheet may attribute new material to one accused, a co-accused's bail may be cancelled, or an order may be modified on appeal. Before relying on parity, verify the current status of each co-accused's bail and check whether any later document changes the picture. The law on parity is also developed through decisions of the higher courts, so the governing authorities should be checked afresh rather than assumed. A well-prepared comparison is not a guarantee that parity will be accepted.

For how parity fits among the other considerations in a regular bail application, see Regular Bail in India: Key Factors Courts Examine.