AJWAR versus NIYAJ AHMAD & ANR. on 30 September 2022

356

[2022] 7 S.C.R. 356

SUPREME COURT REPORTS

[2022] 7 S.C.R.

AJWAR

A

v.

NIYAJ AHMAD & ANR.

(Criminal Appeal No. 1722 of 2022)

BSEPTEMBER 30, 2022

[DR DHANANJAYA Y CHANDRACHUD ANDHIMA KOHLI, JJ.]

Code of Criminal Procedure, 1973 – ss. 161, 482, 173 – Bail– When not granted – FIR was registered against the ten accusedCfor offence punishable u/s 147, 148, 149, 302, 307, 352 and 504r/w. s.34 of the IPC – The first respondent was not named in the FIR,his role is alleged to have emerged during the course of theinvestigation – After the investigation was completed, charge-sheetwas filed against the accused, including the first respondent – DuringDthe course of the deposition, PW 1 has adverted to the role of thefirst respondent – Bail application filed by the first respondent wasdismissed by the Session Court – The first respondent moved theHigh Court for grant of bail – Single Judge of the High Courtgranted bail – On appeal, held: The High Court has failed to noticethe facts bearing on the seriousness and gravity of the offence –EOnce the role of the first respondent has emerged during the courseof the investigation, followed by the filing of a charge-sheet, nocase for the grant of bail was made out – That apart, AdditionalSessions Judge in his order adverted to the fact that the firstrespondent upon being granted bail has consistently remained absentFfrom the trial – Hence, the order passed by the High Court is herebyset aside – First respondent directed to surrender.

Code of Criminal Procedure, 1973 – Bail – Grant of – Pointsto be considered while granting bail – The Court is duty bound toconsider: (i) The seriousness and gravity of the crime; (ii) The roleGattributed to the accused; (iii) The likelihood of the witnesses beingtampered with if bail is granted; (iv) The likelihood of the accusednot being available for trial if bail 6 is granted; and (v) The criminalantecedents of the accused.

Code of Criminal Procedure, 1973 – Bail – Grant of –HWhether to write an elaborate or detailed judgment or not – Held:356

At the stage of deciding as to whether or not to grant bail, the Courtis not expected to write an elaborate or detailed judgment – However,the reasons in support of an order granting or refusing bail mustemerge from the record and must show a due application of mind bythe Judge to the facts of the case.

Allowing the appeal, the Court

HELD: 1. The manner in which the Single Judge of theHigh Court has disposed of the application for bail is unsatisfactory.In determining as to whether bail should be granted in a matterinvolving a serious criminal offence, the Court is duty bound toconsider: (i) The seriousness and gravity of the crime; (ii) Therole attributed to the accused; (iii) The likelihood of the witnessesbeing tampered with if bail is granted; (iv) The likelihood of theaccused not being available for trial if bail is granted; and (v) Thecriminal antecedents of the accused. In successive orders, theSingle Judge of the High Court granted bail containing the samesentence, purportedly of reasons. Merely recording that the Courthas had regard to the nature of the accusation, the severity of thepunishment in the case of conviction, the nature of supportingevidence, prima facie satisfaction of the Court in support of thecharge, reformative theory of punishment and the larger mandateof Article 21 is not a satisfactory method for the simple reasonthat the facts of the case have to be considered. Moreover, notall the circumstances referred to above will weigh in the samedirection. The duty to consider the circumstances of the casecannot be obviated by setting down legal formulations. [Paras 10& 11][361-E-H; 362-A-C]

2. At the stage of deciding as to whether or not to grantbail, the Court is not expected to write an elaborate or detailedjudgment. However, the reasons in support of an order grantingor refusing bail must emerge from the record and must show adue application of mind by the Judge to the facts of the case. Anover-burdened docket is no justification for formulaic justice. ThisCourt, therefore, disapprove of the manner in which the SingleJudge of the High Court of Judicature at Allahabad has beendealing with applications for bail. [Paras 13][363-D]

A

B

C

D

E

F

G

H

A3. The High Court has failed to notice the facts bearing onthe seriousness and gravity of the offence. The incident has ledto the murder of two sons of the appellant as a result of firearminjuries. The name of the first respondent has clearly emergedduring the course of the investigation in the statement recordedunder Section 161 of CrPC. As a matter of fact, the cross caseBalleging that the first respondent was injured during the courseof the investigation would indicate prima facie, his presence at thescene of the incident. Once the role of the first respondent hasemerged during the course of the investigation, followed by thefiling of a charge-sheet, we are clearly of the view that no case forCthe grant of bail was made out before the High Court. The firstrespondent has undergone about two years and two months ofcustody. That apart, the Additional Sessions Judge at Meerut inhis order dated 23 August 2022 adverted to the fact that the firstrespondent upon being granted bail has consistently remainedabsent from the trial and has sought repeated adjournments as aDresult of which the cross-examination of the witnesses hasremained to be concluded. As a result, it is evident that the firstrespondent upon being released on bail has failed to cooperatein the expeditious disposal of the trial despite the directions givenby the High Court in its order dated 7 April 2022. He is evadingEthe conclusion of the trial. [Para 19][365-C-G]

Mahipal v. Rajesh Kumar (2020) 2 SCC 118 : [2019]14 SCR 529; Aminuddin v. State of Uttar Pradesh,Criminal Appeal No. 317 of 2021 decided by theSupreme Court – relied on.F

Case Law Reference

[2019] 14 SCR 529 relied onPara 12

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1722 of 2022.GFrom the Judgment and Order dated 04.08.2022 of the High Courtof Judicature for UP at Allahabad in Criminal Misc. Bail Application No.4555 of 2022.

Md. Anas Chaudhary, Ms. Snehla Chaudhary, Ms. Nishat Parveen,Ansar Ahmad Chaudhary, Advs. for the Appellant.

H

Sharan Thakur, AAG, Rajul Bhargava, Sr. Adv., Sitab AliChaudhary, Gufran Ali, Ms. Rubina, Sadik, Ms. Preeti Gupta, SarveshSingh Baghel, Siddharth Thakur, Ms. Arushi Singh, Ms. Vanya Gupta,Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. A Single Judge of the High Court of Judicature at Allahabad, byan order dated 4 August 2022, directed the release of the first respondenton bail in connection with Case Crime No 126 of 2020 registered atPolice Station Mundali, District Meerut, Uttar Pradesh for offencespunishable under Sections 147, 148, 149, 302, 307, 352 and 504 readwith Section 34 of the Indian Penal Code 1860[1].

3. The First Information Report was registered on 19 May 2020on the basis of the complaint of the appellant against ten accused persons,namely, Nazim, Abubakar, Waseem, Aslam, Gayyur, Nadeem, Hamid,Akram, Kadir and Danish. The allegation in the FIR is that at around7.30 pm on the same day, the accused who had prior enmity with theparties discriminately fired at the appellant and his sons and, as a result,two sons of the appellant, Abdul Khaliq and Abdul Majid sustained bulletinjuries. Abdul Khaliq died on the spot, while Abdul Majid died on theway to the hospital. The appellant’s nephew is alleged to have beenseriously injured during the course of the incident.

4. The postmortem report of the deceased, Abdul Khaliq, indicatesthat he had received one fire arm injury in the head and the cause of thedeath was cranio-cerebral damage as a result of an ante mortem firearminjury. The postmortem report of Abdul Majid indicates that he hadsustained one firearm entry wound in the abdomen and one correspondingexit wound and the cause of death was due to shock and hemorrhagecaused by the ante mortem firearm injury.

5. Though the first respondent was not named in the FIR, his roleis alleged to have emerged during the course of the investigation. In thestatement of the appellant under Section 161 of the Code of CriminalProcedure Code 1973[2], he was put to question on why first respondent 1 “IPC”

2 “CrPC”

A

B

C

DE

F

G

H

Awas not named as an accused in the first information report, to whichthe appellant responded as follows:

“I have got written the complaint by Saleem (scribe of the FIR)orally and told him the name of Niyaz Ahmad. Niyaz Ahmad wasalso involved in the occurrence”

B

6. After the investigation was completed, a charge-sheet wassubmitted under Section 173 CrPC on 23 June 2020 against the accused,including the first respondent, for offences punishable under Sections147, 148, 149, 352, 302, 307 and 504 read with Section 34 of IPC. Thecharge-sheet was submitted against eight accused, seven of whom wereCnamed in the FIR, while the name of the first respondent was addedlater. Three other accused were not found to be involved afterinvestigation and thus, charge sheet was not filed against them.

7. Cognizance has been taken and the case has been committedto the Sessions Court where it has been registered as Sessions Trial NoD574 of 2020 which is pending in the court of the Additional SessionsJudge, Court No 15, Meerut. Charges have been framed. The evidenceof the informant, PW 1, has been recorded. During the course of thedeposition, PW 1 has adverted to the role of the first respondent. Thefirst bail application filed by the first respondent was dismissed on 29July 2021 because it was not pressed. The second application for bailEfiled by the first respondent was dismissed by the Sessions Court on 16December 2021 in view of the seriousness of the offence and the factthat there is prior enmity between the factions. The appellant moved theHigh Court under Section 482 of CrPC for expeditious conclusion of thetrial. By an order dated 7 May 2022, the High Court directed the SessionsFCourt to conclude the trial expeditiously, preferably within a period of sixmonths. The first respondent moved the High Court for grant of bailwhich has resulted in the impugned order dated 4 August 2022.

8. While granting bail, the Single Judge of the High Court hasobserved as follows:

G

“Having heard the submissions of learned counsel of both sides,nature of accusation and severity of punishment in case ofconviction, nature of supporting evidence, prima facie satisfactionof the Court in support of the charge, reformative theory ofpunishment. and considering larger mandate of the Article 21 ofthe Constitution of India and the dictum of Apex Court in the case H

of Dataram Singh v. State of U.P. and another, (2018) 3 sec 22,without expressing any view on the merits of the case, I find it tobe a case of bail.

A

Considering the facts and circumstances of the case, I find it tobe a fit case for bail.”

B

9. At the outset, it needs to be noted that this Court has had occasionto peruse a succession of orders by the same Judge of the High Court ofJudicature at Allahabad (which were challenged in Special leave Petitionsbefore this Court) containing identical reasons as recorded above forthe grant of bail. As a matter of fact, in the counter affidavit, which hasbeen filed by the first respondent, the fact that similar orders have beenpassed by the Single Judge has been relied upon though with thesubmission that the first respondent should not be penalized for the HighCourt’s failure to record adequate reasons. The first respondent in thecourse of his counter affidavit states as follows:

C

C

“...In fact, the present case is not the only case, in which so calledreasons are not assigned by the Hon’ble High Court while grantingbail. There are many other cases also in which the same or similarorders were passed by the Hon’ble High Court and perhaps willbe passed in future, as well. Therefore, the Respondent No.1may not be penalized for something on which he has no control atall and it is the judicial discretion of the Hon’ble High Court togive reasons or not to give reasons while granting bail...”

D

E

10. The manner in which the Single Judge of the High Court hasdisposed of the application for bail is unsatisfactory. In determining as towhether bail should be granted in a matter involving a serious criminaloffence, the Court is duty bound to consider:

F

(i) The seriousness and gravity of the crime;

(ii) The role attributed to the accused;

(iii) The likelihood of the witnesses being tampered with if bailis granted;G

(iv) The likelihood of the accused not being available for trial ifbail is granted; and

(v) The criminal antecedents of the accused.

A11. In successive orders, the Single Judge of the High Court grantedbail containing the same sentence, purportedly of reasons. Merelyrecording that the Court has had regard to the nature of the accusation,the severity of the punishment in the case of conviction, the nature ofsupporting evidence, prima facie satisfaction of the Court in support ofthe charge, reformative theory of punishment and the larger mandate ofBArticle 21 is not a satisfactory method for the simple reason that thefacts of the case have to be considered. Moreover, not all thecircumstances referred to above will weigh in the same direction. Theduty to consider the circumstances of the case cannot be obviated bysetting down legal formulations.C[[3]]

12. In Mahipal v. Rajesh Kumar[[3]], a two-Judge Bench observed:

“25. Merely recording “having perused the record” and “on thefacts and circumstances of the case” does not subserve the purposeof a reasoned judicial order. It is a fundamental premise of openjustice, to which our judicial system is committed, that factorsDwhich have weighed in the mind of the Judge in the rejection orthe grant of bail are recorded in the order passed. Open justice ispremised on the notion that justice should not only be done, butshould manifestly and undoubtedly be seen to be done. The dutyof Judges to give reasoned decisions lies at the heart of thisEcommitment. Questions of the grant of bail concern both libertyof individuals undergoing criminal prosecution as well as theinterests of the criminal justice system in ensuring that those whocommit crimes are not afforded the opportunity to obstruct justice.Judges are duty-bound to explain the basis on which they havearrived at a conclusion.

F

27. Where an order refusing or granting bail does not furnish thereasons that inform the decision, there is a presumption of thenonapplication of mind which may require the intervention of thisCourt.”

GIn Aminuddin v. State of Uttar Pradesh[4], a two-Judge Benchof this Court of which allowed the appeal filed against the judgment ofthe High Court granting bail. The Single Judge of the Allahabad HighCourt had disposed the bail application with the same reasoning as 3 (2020) 2 SCC 118H4 Criminal Appeal No. 317 of 2021

extracted above in this case. The following observations were made onthe reasoning of the High Court :

A

“8. In the present case, the High Court has merely observed thatbail was being granted after considering the submissions and havingregard to the “larger mandate of Article 21”. There can be nomanner of doubt that the protection of personal liberty under Article21 is a constitutional value which has to be respected by the HighCourt, as indeed by all courts. Equally, in a matter such as thepresent, where a serious offence of murder has taken place, theliberty of the accused has to be necessarily balanced with thepublic interest in the administration of criminal justice system whichrequires that a person who is accused of a crime is held toaccount.”

BC

BC

13. At the stage of deciding as to whether or not to grant bail, theCourt is not expected to write an elaborate or detailed judgment. However,the reasons in support of an order granting or refusing bail must emergefrom the record and must show a due application of mind by the Judgeto the facts of the case. An over-burdened docket is no justification forformulaic justice. We, therefore, disapprove of the manner in which theSingle Judge of the High Court of Judicature at Allahabad has beendealing with applications for bail.

D

E

14. In the above facts, we would have considered remanding theproceedings back to the High Court. However, during the course ofhearing, elaborate submissions have been addressed before this Courton whether or not the grant of bail was justified.

15. Certain significant aspects which bear on the issue as towhether bail ought to be granted in the facts of the present case need tobe elaborated after considering the submissions of the counsel appearingon behalf of the rival parties.

F

16. On behalf of the appellant, it has been submitted that:

(i) Two sons of the appellant have been murdered in the courseGof the incident;

(ii) The role of the first respondent has emerged during thecourse of the statements which were recorded under Section161 CrPC; H

A(iii)In the course of his deposition, the appellant as PW1 hasspecifically adverted to the role of the first respondent inthe course of the incident;

(iv) Having due regard to the nature and gravity of the offence,there is no justification for the grant of bail, particularlyBwhen the role of the first respondent has been adverted tonot only by the appellant but by other witnesses in the courseof their statements recorded under Section 161 CrPC inthe counter case filed by the wife of the first respondentFIR in Case Crime No 361 of 2020; and C(v)Though the trial was expedited by the High Court, by itsorder dated 7 April 2022, repeated adjournments have beensought by the first respondent to avoid an expeditious trial,to which a reference has been made by the Trial Court inan order dated 23 August 2022. The first respondent isavoiding the trial.D

17. Supporting the submissions of the appellant, it has been urgedon behalf of the State of Uttar Pradesh that, in the present case, theHigh Court has erred in granting bail without having due regard to thefollowing circumstances, namely:

(i) The nature and gravity of the crime;

E

(ii) The role attributed to the first respondent in the depositionof PW 1 and even prior thereto in the statements whichwere recorded during the course of the investigation;

(iii) The recovery made of five country made pistols;F

(iv) The postmortem reports which indicate that the death wascaused due to gun-shot injuries suffered in the head andabdomen, respectively; and

(v) The criminal antecedents of the first respondent.

G18. On behalf of the first respondent, it has been submitted that:

(i) A cross case was sought to be registered at the behest ofthe wife of the first respondent;

(ii) Eventually, an FIR in Case Crime No 361 of 2020 wasregistered on 21 November 2020, inter alia, for offencesH

punishable under Sections 147, 148, 149, 452, 323, 307, 504and 506 read with Section 34 of IPC;

(iii) The FIR was registered on the directions of the JudicialMagistrate;

(iv) A closure report was submitted by the Police on twooccasions. The Magistrate by an order dated 31 August2021 declined to accept the closure report and directedfurther investigation; and

(v) The first respondent suffered a gun-shot injury during thecourse of the incident and the injury report would supportthe cross case which has been registered on the informationprovided by his wife.

19. The High Court has failed to notice the facts bearing on theseriousness and gravity of the offence. The incident has led to the murderof two sons of the appellant as a result of firearm injuries. The name ofthe first respondent has clearly emerged during the course of theinvestigation in the statement recorded under Section 161 of CrPC. As amatter of fact, the cross case alleging that the first respondent wasinjured during the course of the investigation would indicate prima facie,his presence at the scene of the incident. Once the role of the firstrespondent has emerged during the course of the investigation, followedby the filing of a charge-sheet, we are clearly of the view that no casefor the grant of bail was made out before the High Court. The firstrespondent has undergone about two years and two months of custody.That apart, the Additional Sessions Judge at Meerut in his order dated23 August 2022 adverted to the fact that the first respondent upon beinggranted bail has consistently remained absent from the trial and hassought repeated adjournments as a result of which the cross-examinationof the witnesses has remained to be concluded. As a result, it is evidentthat the first respondent upon being released on bail has failed to cooperatein the expeditious disposal of the trial despite the directions given by theHigh Court in its order dated 7 April 2022. He is evading the conclusionof the trial.

20. We accordingly allow the appeal and set aside the impugnedorder of the Single Judge dated 4 August 2022 enlarging the firstrespondent on bail.

A

B

C

D

EF

G

H

366SUPREME COURT REPORTS

[2022] 7 S.C.R.

A21. The first respondent is granted two weeks’ time to surrender.22. We also clarify that any observations made in the order shallnot affect the merits of the trial.

23. Pending application, if any, stands disposed of.

B

Ankit Gyan

Appeal allowed.

(Assisted by : Rahul Rathi, LCRA)

C

D

E

F

G

H