ANSAR AHMAD versus STATE OF UTTAR PRADESH AND ANR. on 18 April 2023

O R D E R

1. Leave granted.

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F2. The appellant seeks to assail two orders of even date i.e.,23.09.2021, passed by the High Court of Judicature at Allahabad,Lucknow Bench, Lucknow whereby the Bail Application No. 624 of2019, filed by the respondent – Subhash Yadav, and Bail Application No.4309 of 2019, filed by the respondent – Rajesh Vikram Singh, in CaseCrime No. 17 of 2018 under Sections 147, 148, 149, 307, 302, 120-B/34GIPC and Sections 3/4 of the Explosive Substances Act, Police StationJagdishpur, District Amethi were allowed and both the abovementionedrespondents have been enlarged on regular bail.

3. The allegations are that the appellant along with his son –Ashfaque Ahmad and his companions were present in front of JagdishpurH

Branch of Vijaya Bank when the accused Vanshraj Yadav attackedAshfaque Ahmad by throwing a grenade, and thereafter, Satai and otheraccused persons started indiscriminate firing due to which, AshfaqueAhmad died on the spot and Razi Ahmad @ Manu received injuries.Two accused persons were caught hold on the spot with the help ofpublic. One of them disclosed his name, Amit Chaubey S/o VindhyachalChaubey, resident of Bihar while the second accused did not disclose hisname. Two country made pistols, two magazines and one mobile phonewere recovered from their possession. During the course of interrogation,accused – Amit Chaubey disclosed that the respondent (Rajesh VikramSingh) and his brother had sent the accused persons for committing themurder of Ashfaque Ahmad. In the FIR, registered on the statement ofthe appellant, it is further mentioned that a sum of Rs. 2, 47, 700/- cashwas recovered from the accused persons, who were caught by the public.It was alleged to be a case of contract killing.

4. During the course of investigation, it was found that while oneof the respondents (Subhash Yadav) was allegedly present at the spot atthe time of occurrence, the other respondent (Rajesh Vikram Singh)was a part of the conspiracy hatched to eliminate Ashfaque Ahmad.The motive behind elimination of Ashfaque Ahmad was that his father-in-law was a witness in another criminal case registered against RajeshVikram Singh under Section 302 IPC in which the above-namedrespondent was eventually convicted.

5. One of the accused, who allegedly participated in theoccurrence, namely, Satish Kumar @ Satai applied for his bail and theHigh Court vide an order dated 03.09.2021 rejected his prayer observingas follows:

“Considering the rival submissions of learned counsel for theparties and going through the contents of the F.I.R., injury reportof the applicant, ante mortem injury of the deceased and themedico legal report of the injured Razi as well as the contents ofthe F.I.R. No. 168 of 2018 lodged by the wife of the applicant andalso considering the criminal antecedent so the applicant, I am ofthe view that no case is made out for grant of bail to the applicant.Accordingly, the bail application is rejected.”

6. It appears that during the pendency of the above-stated bailapplication, the respondents (Subhash Yadav and Rajesh Vikram Singh)

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Aalso moved the High Court for their enlargement on bail. In the case ofSubhash Yadav, it was categorically pointed out before the High Courtthat he was involved in at least 14 criminal cases and was already aconvict under Section 302 IPC. While on bail in that case, he was foundinvolved in the murder of Ashfaque Ahmad, in the bail application of therespondent - Rajesh Vikram Singh, the High Court was apprised of theBfact that there are 26 criminal cases registered against him, of course, insome of which, he has already been acquitted and in a few cases, hewas on bail. In one of the cases – Crime No. 229/2004, under Section302 IPC etc., he was convicted and in Criminal Appeal No. 497/2008, his conviction and sentence were suspended.C

7. The High Court briefly narrated the prosecution case and afternoticing the contentions from both sides, concluded that “considering therival submissions of learned counsel for parties and going through thecontents of FIR, relevant part of the case diary as discussed above, I amof the opinion that the applicant is entitled to be released on bail.”

D8. The complainant, who is the father of the deceased, beingaggrieved by the grant of bail to the private respondents, is before thisCourt.

9. We have heard learned Senior counsel appearing on behalf ofthe appellant, the learned Senior counsel appearing on behalf of the privateErespondents as well as learned Additional Advocate General appearingon behalf of the State of Uttar Pradesh.

10. There cannot be any quarrel with the submission advanced byMr. R. Basant, the learned Senior Counsel appearing for one of theprivate respondents that the Court while granting bail is not required toFgive detailed reasons touching the merits or de-merits of the prosecutioncase as any such observation made by the Court in a bail matter canunwittingly cause prejudice to the prosecution or the accused at a laterstage. The settled proposition of law, in our considered opinion, is thatthe order granting bail should reflect the judicial application of mind takingGinto consideration the well-known parameters including:-

(i) The nature of the accusation weighing in the gravity andseverity of the offence;

(ii) The severity of punishment;

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(iii) The position or status of the accused, i.e. whether theAaccused can exercise influence on the victim and thewitnesses or not;

(iv) Likelihood of accused to approach or try to approach thevictims/witnesses; B

(v) Likelihood of accused absconding from proceedings;

(vi) Possibility of accused tampering with evidence;

(vii) Obstructing or attempting to obstruct the due course ofjustice; C

(viii) Possibility of repetition of offence if left out on bail;

(ix) The prima facie satisfaction of the court in support of thecharge including frivolity of the charge;

(x) The different and distinct facts of each case and nature ofsubstantive and corroborative evidence.

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We hasten to add that there can be several other relevant factorswhich, depending upon the peculiar facts and circumstances of a case,would be required to be kept in mind while granting or refusing bail to anaccused. It may be difficult to illustrate all such circumstances, for therecannot be any straight jacket formula for exercising the discretionaryjurisdiction vested in a Court under Sections 438 and 439 respectively ofthe CrPC, as the case may be.

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11. We are of the view that in the case in hand, several importantfactors ought to have been kept in mind by the learned High Court whileconsidering the prayer of the respondents for their enlargement on regularbail. The murder of Ashfaque Ahmad took place in broad day light. Theoccurrence has been witnessed by the appellant and two more eyewitnesses. Two of the accused were nabbed at the spot. It was apparentlya case of contract killing. There is material to indicate the motive behindthe commission of gruesome murder of Ashfaque Ahmad. Both therespondents have chequered criminal record and it is difficult to accepttheir sweeping statement that all the cases registered against them arepolitically motivated. Suffice to take notice at this stage that earlier boththe respondents have been found guilty in a case under Section 302 IPCand while on bail, they have been prima facie found involved in theinstant case. If that is true, it is a clear case of misuse of the concession F

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Aof bail granted to them in the earlier case. We find it difficult as to whythe reasons assigned by the High Court a few days before its orderdated 03.09.2021, passed in the case of Satish Kumar @ Satai, werefound distinguishable in the case of the private respondents except thatSatish Kumar @ Satai was physically involved in the commission ofmurder and was allegedly one of the accused who fired at the deceased.B

12. The other important factor is that Razi Ahmad @ Manu is oneof the eye witnesses. He is yet to depose as a prosecution witness.Though not as a general rule but it is expedient and is always in theinterest of criminal justice system that the prayer for bail is consideredafter ensuring that the statements of the vital witnesses stand recordedCand there is no likelihood of influencing or tampering their evidence.

13. The appellant has also placed on record the copies of orderspassed by the Trial Court on various dates after the release of privaterespondents on bail by the High Court. The order dated 15.03.2022suggests that the respondent – Subhash Yadav was absent from trialDand non-bailable warrants were issued against him. There are series ofsubsequent orders to indicate that both the respondents have been seekingexemption from personal appearance and thus the trial has beencompletely stalled. Learned Additional Advocate General informs thattill date, only one witness has been examined. It is the solemn duty of theECourt to ensure that while extending the protection of liberty to an accusedwithin the meaning of Article 21 of the Constitution, the interest of theprosecution is equally protected and the concession of bail should not beallowed to be misused to the prejudice of the prosecution of the victim.

14. Mr. Basant, the learned Senior counsel appearing for one ofFthe accused vehemently submitted that very cogent and overwhelmingcircumstances are necessary for cancellation of bail. Bail once grantedshould only be cancelled if it comes to the notice of the Court that theaccused has misused the liberty granted to him by the Court. Accordingto Mr. Basant, there are no supervening circumstances warrantingcancellation of bail granted by the High Court.G

15. We are not at all impressed by the aforesaid submission ofMr. Basant as it is well settled position of law that cancellation of bail isnot limited to the occurrence of any supervening circumstances. In AshMohammad vs. Shivraj Singh @ Lalla Babu and Another,reported in(2012) 9 SCC 446,this Court has observed that there is no definedH

universal rule that applies in every single case. Hence, it is not the lawthat once bail is granted to the accused, it can only be cancelled on theground of likelihood of an abuse of bail. The Court before whom theorder of grant of bail is challenged is empowered to critically analyse thesoundness of the bail order. The Court must be wary of a plea forcancellation of bail order vs. a plea challenging the order for grant ofbail. Although on the face of it, both situations seem to be the same yet,the grounds of contention for both are completely different. Let’sunderstand the different conditions in both the situations.

16. In an application for cancellation of bail, the court ordinarilylooks for supervening circumstances as discussed above. Whereas inan application challenging the order for grant of bail, the ground ofcontention is with the very order of the Court. The illegality of due processis questioned on account of improper or arbitrary exercise of discretionby the court while granting bail. So, the crux of the matter is that oncebail is granted, the person aggrieved with such order can approach thecompetent court to quash the decision of grant of bail if there is anyillegality in the order, or can apply for cancellation of bail if there is noillegality in the order but a question of misuse of bail by the accused.In Puran v. Rambilas and another,reported in 2001 (6) SCC 338, thisCourt has observed, “The concept of setting aside as unjustified, illegalor perverse order is totally different from the cancelling an order of bailon the ground that the accused had misconducted himself, are becauseof some supervening circumstances warranting such cancellation”

17. The above principle has been reiterated in the caseof Venkatesan Balsubramaniyanvs. The Intelligence Officer, DRIBangalore(Cr. Appeal No. 801 of 2020), reported in (2020) 13 Scale191 wherein this Court observed that a default bail illegally or erroneouslygranted under Section 167(2) CrPC can be cancelled under Section 439(2)CrPC.

18. Taking into consideration all these facts and circumstancesbut without expressing any views on the merits of the ongoing trial, weare satisfied that the High Court did not take into consideration the relevantmaterial while granting bail to the private respondents. It may be truethat an accused cannot be permitted to be languished in jail indefinitelybut the Courts while considering the bail application need to wait for theappropriate stage where such a relief can be granted without any adverse AB

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Aimpact on the prosecution case. That stage is yet to reach in the presenttrial as some of the crucial eye witnesses are yet to depose.

19. For the reasons aforestated, the appeals are allowed, theimpugned orders dated 23.09.2021, passed by the High Court of Judicatureat Allahabad, Lucknow Bench, Lucknow in Bail Application No. 624 ofB2019 and Bail Application No. 4309 of 2019, granting regular bail to theprivate respondents, are hereby set aside and both the respondents aredirected to surrender before the Trial Court forthwith, failing whichcoercive action shall be taken against them.

20. However, the respondents shall be at liberty to apply for bailCafter examination of all the eye witnesses or other material witnesses.Any such application shall be considered as per its own merit withoutbeing influenced by the observations made hereinabove.

21. The Trial Court is directed to decide the case expeditiouslyand make an endeavour to conclude the trial within one year.

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22. As a sequel thereto, pending interlocutory applications alsostand disposed of.

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Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.

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