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Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Case title: AJWAR VS WASEEM AND ANOTHER

Case no.:  Criminal Appeal Nos. of 2024 arising out of Petition for Special Leave to Appeal (Criminal) Nos. 513, 2437, 13404, and 16310 of 2023

Dated on: 17TH May 2024

Quorum:  Hon’ble Ms. Justice [HIMA KOHLI And Hon’ble Mr. Justice. AHSANUDDIN AMANULLAH

FACTS OF THE CASE

Bail was granted to accused Waseem on grounds of parity with his father, Niyaz Ahmad, which was later set aside by the Court. An appeal by the appellant-complainant led to the restoration of the bail application of accused Waseem to be decided afresh by the High Court. The case involves multiple accused individuals (Nazim, Aslam, Abubakar) seeking bail on similar grounds under Section 439 Code of Criminal Procedure, 1973 for a case involving various offences. Different Benches of the High Court allowed the bail applications of Waseem, Nazim, Aslam, and Abubakar on separate dates. The appellant-complainant approached the Court aggrieved by the bail orders granted by the High Court on these individuals. The case pertains to an incident on 19 May, 2020, with ongoing investigation and court proceedings involving delays and attempts to transfer the trial. The conduct of the respondents in delaying the trial was criticized by the Additional Sessions Judge in Meerut. Co-accused Niyaz Ahmad filed a transfer petition for a change in the trial judge due to alleged bias. The post mortem reports of the deceased sons of the appellant showed fatal firearm injuries. Eyewitness testimonies implicated Waseem, Nazim, Aslam, and Abubakar in the incident. Multiple arrests were made, and illegal firearms were recovered from Aslam. Trial proceedings involved examination of witnesses and the statement of the informant. Previous court orders for bail were challenged and overturned based on findings. The case is pending trial before the Additional Sessions Judge in Meerut. Allegations of enmity and a targeted attack by the accused are central to the case.

 

CONTENTIONS OF THE APPELLANT

Appearing for the appellant-complainant, Mr. Shreyas U. Lalit and Mr. Ansar Ahmad Chaudhary, learned counsel submitted that this is a case of double murder of two young sons of the appellant-complainant at the hands of the accused persons who harbored previous enmity against him and his family members. Waseem (A-7) was arrested on 27th May, 2020. The other accused persons were arrested on different dates. After their arrest, the police conducted a search of the respondents and recovered five illegal country-made pistols, seven live cartridges and five used cartridges from the possession of Aslam (A-2). A specific role has been attributed to each of the four respondents herein that resulted in the death of the appellant’s two sons and serious injuries to his nephew. All the four respondents herein were named in the FIR, besides the other co-accused. During the course of investigation, the statements of eleven independent witnesses were recorded under Section 161 Cr.P.C. wherein an active role has been attributed to all the four respondents. Later on, the appellant-complainant entered the witness box and appeared as PW-1. He has reiterated the role played by the respondents herein in committing the offence. Two other independent eye witnesses, namely, Abdullah (PW-2), Asjad (PW-3) and Fahim Uddin (PW-4) have supported the testimony of the appellant (PW-1). Learned counsel for the appellant-complainant further states that the High Court has completely overlooked the fact that the respondents-accused parties were the aggressors who had forcibly entered the house of the appellant-complainant and indiscriminately fired at him, his sons and other persons who had gathered at his house to break the fast. They have criminal antecedents and several cases are registered against them. Even before completion of a period of six months granted by the High Court, by an earlier order dated 7th April, 2022 passed on an application moved by the appellant complainant under Section 482 Cr.P.C for issuing directions to the trial Court to complete the trial in a definite period, the High Court has proceeded to grant bail in favour of Waseem on the grounds of parity with his father; similar orders have been passed in favour of Nazim, Aslam and Abubakar. It has also been pointed out that from the side of the accused persons, a cross case was registered on the basis of an application moved under Section 156(3) of the Cr.P.C. The matter was investigated and the police filed its final report. He submitted that this conduct of the respondents was adversely commented upon by the Additional Sessions Judge, Court No.15, Meerut in his order dated 23rd August, 2022, wherein it was observed that five dates were taken by the accused but they failed to cross-examine the appellant – complainant and the accused were cautioned that if the cross-examination would not be completed, then their right to cross-examine him would be closed. To delay the trial, the co-accused, Niyaz Ahmad filed a transfer petition before the Sessions Court, requesting that the trial be conducted by some other Additional Sessions Judge, on the plea of bias.

CONTENTIONS OF THE RESPONDENTS

As for the subsequent conduct of the respondents, it was pointed out that after being released on bail, one of the prime eyewitnesses, Abdullah (PW-2) was sought to be intimidated by them and their supporters. Abdullah (PW-2) filed a complaint on 21st March, 2023 which was registered as an FIR, wherein it was alleged that five accused persons i.e. three respondents herein (Waseem, Nazim and Aslam) and the co-accused, Hamid and Ayyub had threatened him in open Court. After he left the Court premises, he was thrashed by them. On an application moved by PW-2, he was extended protection by the Court. The present petitions have been strongly opposed by Mr. Siddharth Luthra, Senior Advocate appearing for the accused-respondents Waseem, Nazim and Aslam and Mr. Sitab Ali Chaudhary, learned counsel for the accused-respondent Abubakar. Learned counsel submitted that any delay in completing the trial cannot be attributed to the respondents and the adjournments referred to by the learned trial judge in the order dated 23rd August 2022 were not on account of the respondents. In fact, the prosecution witness was available only on two dates for his cross-examination and only one date was taken by the accused, Niyaz Ahmed on medical grounds. He submitted that accused Waseem did not misuse the liberty granted to him by the High Court vide order dated 22nd August, 2022 and when his bail order was set aside by this Court on 14th October, 2022 and remanded back to the High Court for passing a reasoned order, he had surrendered on time. Learned counsel submitted that the appellant-complainant himself is a well-known criminal of the area, having several cases registered against him as also his two sons. The criminal history of the appellant-complaint and his two deceased sons, Abdul Majid and Abdul Khaliq have been detailed in paras 19 to 21 of the counter affidavit. As per the respondents, the appellant-complainant is involved in 10 criminal cases and his two deceased sons, Abdul Majid was involved in 21 criminal cases and Abdul Khaliq was involved in 2 cases. Next, contending that bail once granted cannot be cancelled until there are supervening circumstances and in the present case there are no such circumstances that require setting aside of the impugned orders, learned counsel for the respondents supported the impugned orders and requested that the present appeals be dismissed. It was additionally submitted that even when the accused Waseem was released on bail, he had abided by the conditions of bail imposed on him and did not misuse the liberty in any manner. On merits, learned counsel for the respondents submitted that there was previous enmity between the parties; those three persons had been falsely introduced in the FIR against whom no case was made out and after investigation, their names were dropped from the chargesheet; that the prime eye-witnesses (PW-1, 2, 3 and 4) are related to the deceased being their father/uncle/cousin, etc. Several loopholes in the prosecution version were sought to be highlighted by the learned counsel for the respondents relating to conducting the inquest of the deceased Abdul Majid, the difference in the time between reporting the crime that took place on 19th May, 2020, at 2030 hours as against the time when the investigation had allegedly started (1818 hours); the alleged manipulation in the Medico Legal Reports of the injured, Asjad; the role of Asjad (nephew of the appellant complainant) who had allegedly called twice on the mobile phone of Abubakar (brother of the accused, Waseem) which fact could be verified from the CDR details of the mobile phone and showed that the injured Asjad was the aggressor who had threatened to kill Waseem’s brother. It was also contended that the appellant-complainant and 15 other persons with him were present at the mosque and not at his residence, as recorded in the chargesheet and they were the ones who had badly assaulted Waseem’s brother, entered his residence and thrashed his family members. Learned counsel for the respondents submitted that the real reason behind the dispute between the appellant-complainant and his family members and the accused and his family members related to political rivalry as the appellant-complainant had lost the election for the post of Village Pradhan and then proceeded to falsely implicate the accused persons. Learned counsel argued that where there are two bullet injuries, one each to the two deceased by three assailants, there is a possibility of over-implication of the accused persons. Finally, an assurance has sought to be extended to this Court that the respondents will not abscond as they are permanent residents of the village and they shall continue cooperating for timely completion of the trial.

ISSUES

  1. whether Single Judge disposed of the bail application in an unsatisfactory manner?
  2. whether bail should be granted in a serious criminal offence matter?
  3. whether The High Court’s jurisdiction under Section 439(1) of the Cr.P.C. is in question for granting regular bail Examining the justification of the High Court in granting bail to the respondents?

LEGAL PROVISIONS

Section 439 of the Code of Criminal Procedure, 1973: This section deals with the power of the High Court and Sessions Court to grant bail. It outlines the factors to be considered when granting bail, such as the nature and gravity of the offense, likelihood of the accused fleeing from justice, etc.

Section 154 of the Code of Criminal Procedure, 1973: The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. The provision of Section 154 is mandatory.

Section 173 of the Code of Criminal Procedure, 1973: Every investigation under this Chapter shall be completed without unnecessary delay. [(1-A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code shall be completed within two months.

COURT’S ANALYSIS AND JUDGEMENT

The Court must consider the seriousness and gravity of the crime in question. The High Court overlooked the period of custody of the accused for a grave offence. The High Court granted bail based on insufficient reasoning and questionable factors. The accused involved in previous criminal activities were granted bail in this case. The High Court ignored key eyewitness testimonies and the seriousness of the offence. The appellate Court found the bail orders to be unjustified and lacking reasonable grounds. The accused had spent less than three years in custody for a double murder charge. The police’s investigation was criticized for being one-sided. The delay tactics by the accused in the trial process were observed. The High Court granted bail without proper consideration of the gravity of the offence and relevant material. The principles guiding the discretion of granting bail were disregarded by the High Court. The power to grant bail under Section 439 Cr. P.C is of wide amplitude. The discretion of the High Court or a Sessions Court in granting bail is considerable but not unfettered. Considerations for cancelling bail include supervening circumstances or post-grant conduct of the accused. An order granting bail must reflect due application of judicial mind and well-established legal principles. Appellate Courts may set aside bail orders based on illegality, perversity, or irrelevant material. Considerations for setting aside bail orders include supervening circumstances, accused’s conduct on bail, attempts to delay trial, threats to witnesses, and tampering with evidence. The list of considerations provided is illustrative and not exhaustive. At the stage of granting bail, only a prima facie case needs to be examined, detailed reasons causing prejudice to the accused should be avoided in the bail order. The various factors examined collectively indicate that the respondents do not deserve the concession of bail. The observations made are limited to examining the infirmities in the impugned orders and do not indicate an opinion on the merits of the matter pending trial. All four impugned orders are quashed and set aside. Original Names are to surrender within two weeks from the date of this order. Respondents can apply for bail at a later stage if new circumstances emerge.

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Judgement Reviewed by – HARIRAGHAVA JP

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