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SUPREME COURT OF INDIA
HIMA KOHLI, AHSANUDDIN AMANULLAH, JJ.
Ajwar – Appellant
Versus
Waseem And Another – Respondents
Criminal Appeal No. 2639 of 2024 Arising Out of Petition For Special Leave to Appeal (Criminal) No. 513 of 2023
Along With
Ajwar – Appellant
Versus
Nazim And Another – Respondents
Criminal Appeal No. 2640 of 2024 Arising Out of Petition For Special Leave to Appeal (Criminal) No. 2437 of 2023
And
Ajwar – Appellant
Versus
Aslam And Another – Respondents
Criminal Appeal No. 2641 of 2024 Arising Out of Petition For Special Leave to Appeal (Criminal) No. 13404 of 2023
And
Ajwar – Appellant
Versus
Abubakar And Another – Respondents
Criminal Appeal No. 2642 of 2024 Arising Out of Petition For Special Leave to Appeal (Criminal) No. 16310 of 2023
Decided On : 17-05-2024
(A) Criminal Procedure Code, 1973 – Section 439 – Grant of bail – Parameters – While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, Court must consider relevant factors like nature of accusations made against accused, manner in which crime is alleged to have been committed, gravity of offence, role attributed to accused, criminal antecedents of accused, probability of tampering of witnesses and repeating offence, if accused are released on bail, likelihood of accused being unavailable in the event bail is granted, possibility of obstructing proceedings and evading courts of justice and overall desirability of releasing accused on bail – At the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to merits of case that may cause prejudice to accused, ought to be avoided – Bail order should reveal factors that have been considered by Court for granting relief to accused. (Paras 26 and 28)
(B) Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Cancellation of bail – Bail once granted, ought not to be cancelled in a mechanical manner – However, an unreasoned or perverse order of bail is always open to interference by superior Court – If there are serious allegations against accused, even if he has not misused bail granted to him, such an order can be cancelled by same Court that has granted bail – Bail can also be revoked by a superior Court if it transpires that courts below have ignored relevant material available on record or not looked into gravity of offence or impact on society resulting in such an order – Considerations that weigh with appellate Court for setting aside bail order on an application being moved by aggrieved party include any supervening circumstances that may have occurred after granting relief to accused, conduct of accused while on bail, any attempt on part of accused to procrastinate, resulting in delaying trial, any instance of threats being extended to witnesses while on bail, any attempt on part of accused to tamper with evidence in any manner. (Paras 27 and 28)
(C) Indian Penal Code, 1860 – Sections 147, 148, 149, 302, 307, 352 and 504 read with Section 34 – Criminal Procedure Code, 1973 – Section 439 – Grant of bail – Challenge as to – High Court has overlooked period of custody of respondents-accused for such a grave offence alleged to have been committed by them – All accused-respondents have remained in custody for less than three years for such a serious offence of a double murder – There have been allegations that three of accused-respondents have threatened one of key eye-witnesses – Attempt to delay trial on part of respondents has also surfaced from records – Respondents do not deserve concession of bail – Impugned orders quashed and set aside and respondents directed to surrender within two weeks. (Paras 32, 33, 34 and 35)
Facts of the case:
Short question that falls for consideration is whether High Court was justified in exercising jurisdiction under Section 439(1) of Cr.P.C for granting regular bail in favour of respondents in facts and circumstances of present case.
Findings of Court:
Observations made here are limited to examining infirmities in impugned orders and shall not be treated as an opinion on the merits of the matter which is still pending trial. In the event of any new circumstances emerging, respondents shall be entitled to apply for bail at a later stage.
Result : Appeals disposed of.
1. Leave granted.
2. The present appeals are directed against four different orders passed by the learned Single Judges of the High Court of Judicature at Allahabad on applications moved by Waseem (accused No. 7),1[Respondent No. 1 in Criminal Appeal arising out of SLP(Crl.) 513 of 2023], Nazim (accused No. 8),2[Respondent No. 1 in Criminal Appeal arising out of SLP (Crl.) 2437 of 2023], Aslam (accused No. 2),3[Respondent No. 1 in Criminal Appeal arising out of SLP (Crl.) No. 13404 of 2023] and Abubakar (accused No.1),4[Respondent No. 1 in Criminal Appeal arising out of SLP(Crl.) No. 16310 of 2023] under Section 439 Code of Criminal Procedure, 1973,5[Cr.P.C.] for seeking regular bail in respect of Case Crime No.126 of 2020 registered at Police Station Mundali, District Meerut, Uttar Pradesh for offences punishable under Sections 147, 148, 149, 302, 307, 352 and 504 read with Section 34 of Indian Penal Code, 1860,6[IPC]. Vide orders dated 07th December, 2022, 13th February, 2023 and 02nd March, 2023 and 21st March, 2023 respectively, the applications filed by Waseem, Nazim, Aslam and Abubakar were allowed by different Benches of the High Court. Aggrieved by the said orders, the appellant-Complainant has approached this Court.
BRIEF FACTS
3. The relevant facts of the case, as recorded in a First Information Report,7[FIR] registered on the complaint received from the appellant - complainant herein on 19th May, 2020, are that the incident in question had taken place on 19th May, 2020 at 7.30 in the evening when the appellant-complainant, his two sons, Abdul Khaliq and Abdul Majid with some other persons were sitting in the baithak of his house for breaking the fast (Roza Iftar) and preparing to offer prayers. The accused persons (10 in number, namely, Nazim, Abubakar, Waseem, Aslam, Gayyur, Nadeem, Hamid, Akram, Qadir and Danish) arrived at the spot and indiscriminately fired at the appellant and his two sons. Both the sons of the appellant died on the spot and his nephew, Asjad was seriously injured. The appellant-complainant has alleged that there was previous enmity between the parties due to which the accused persons had attacked him and his sons.
4. Pertinently, Niyaz Ahmed, father of Waseem (accused No. 7) was not named in the FIR. His role in the incident came up during the course of the investigation conducted by the police and based thereon, his name was added as a co-accused. On completion of the investigation, a chargesheet was submitted under Section 173 Cr.P.C. on 23rd June, 2020 against eight accused including Abubakar (accused No. 1), Niyaz Ahmad, Aslam (accused No.2) and Nazim (accused No. 8). Aslam is the nephew of Nazir and Nazim is the cousin of Waseem, whose father, Niyaz Ahmad was enlarged on bail by the High Court, vide order dated 4th August 2022, which order was set aside by this Court on 30th September, 2022 in a Criminal Appeal,8[Criminal Appeal No.1722 of 2022] filed by the appellant-complainant. Three other accused were not found to be involved in the offence and on conclusion of the investigation, no chargesheet was filed against them.
PROCEEDINGS AFTER FILING OF CHARGESHEET
5. After the chargesheet was filed, the case was committed to the Sessions Court and was registered as Sessions Trial No.574 of 2020. The same is pending trial before the Court of the Additional Sessions Judge, Court 15, Meerut. Charges were framed and twenty witnesses have been cited by the prosecution. Out of the said list of witnesses, seven are eyewitnesses. The trial has commenced. Four eyewitnesses have been examined so far. Three eyewitnesses are yet to be examined. The statement of the appellant-complainant (PW-1) and three other eyewitnesses (PW-2, PW-3 and PW-4) have been recorded. The prime witnesses have elaborated the role of the respondents herein, i.e., Waseem (A-7), Nazim (A-8), Aslam (A-2) and Abubakar (A-1). Two more witnesses were summoned for examination on 7th May, 2024.
REASONS FOR SETTING ASIDE THE EARLIER BAIL ORDE
(1) Bail order should reveal factors that have been considered by Court for granting relief to accused. (2) Cancellation of bail – An unreasoned or perverse order of bail is always open to interferen....
Bail cannot be granted solely on ground of parity without considering relevant features of case.
(1) While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to vital facts of case brought on record – Due ....
(1) Judicial discretion in granting or refusing bail, as in case of any other discretion which is vested in a court as a judicial institution, is not unstructured.(2) Parity while granting bail must ....
(1) Application for cancellation of bail stands on a different footing than challenging order passed by High Court/Appellate Court releasing accused on bail.(2) Bail cannot be granted without looking....
(1) Court deciding bail application cannot grant bail to accused without having regard to material aspects of case.(2) Bail – Propensity of accused tampering with evidence and influencing witnesses i....
(1) Once bail has been granted it would require overwhelming circumstances for its cancellation.(2) Bail can be revoked by a superior court when previous court granting bail has ignored relevant mate....
Bail – There cannot be any undue discrimination in matter of grant of bail.
Cancellation of Bail – Court while granting bail has not considered the nature and gravity of the accusations, severity of the punishment in the event of bail, likelihood of repetition of the offence....
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