AMINUDDIN versus STATE OF UTTAR PRADESH & ANR. on 23 September 2022

AMINUDDIN

v.

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 1669 of 2022)

SEPTEMBER 23, 2022

[DINESH MAHESHWARI AND KRISHNA MURARI, JJ.]

Bail – Grant of, on parity – When not justified – Penal Code,1860 – ss.147, 148, 149, 302, 352 and 34 – Held: When the bailgranted to co-accused person has been disapproved by SupremeCourt and such grant of bail to co-accused had been the only reasonfor which the bail was granted to the respondent no.2, the impugnedorder is liable to be set aside– In the said case, the High Court hadproceeded in a rather cursory manner and without regard to thesalient feature of the case at hand, being that of gruesome day-light murder of the son of the appellant with 8 grievous injuries,including those of incise wounds and stab wounds on and aroundthe neck and the chest – Impugned order equally suffers from theshortcoming that the relevant features of the case have not at allbeen considered by the High Court – Respondent no.2 has beenspecifically named in the FIR as one of the assailants and lookingto the nature of the accusations and the nature of injuries, theprosecution case prima facie cannot be dubbed as fanciful orimprobable – Impugned order set aside – Respondent no.2 tosurrender – If he applies for bail afresh after surrendering and atan appropriate stage, such an application may be considered on itsown merits.

Mahipal vs Rajesh Kumar (2020) 2 SCC 118 : [2019]14 SCR 529 – referred to.

Case Law Reference

[2019] 14 SCR 529referred toPara 13

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1669 of 2022.

From the Judgment and Order dated 03.12.2020 of the High Courtof Judicature at Allahabad in Criminal Misc. Bail Application No.20894of 2020.

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AAnilendra Pandey, Wahid Hussain, Nadeem Hussain, Sandeep,Advs. for the Appellant.

Shashank Shekhar Singh, Bahar U. Barqi, Aftab Ali Khan, D. S.Mishra, Advs. for the Respondents.

The Judgment of the Court was delivered byB

DINESH MAHESHWARI, J.

Leave granted.

2. The appellant, at whose behest FIR No. 438 of 2019 datedC10.07.2019 came to be registered at Police Station Kasganj, DistrictKasganj, Uttar Pradesh for offences under Sections 147, 148, 149, 302,352 and 34 of the Indian Penal Code, 1860[1], has preferred this appeal bypermission and by special leave, in challenge to the order dated03.12.2020, as passed by the High Court of Judicature at Allahabad inCriminal Misc. Bail Application No. 20894 of 2020.D

2.1. By order impugned, the High Court has granted the concessionof bail to one of the accused persons (respondent No. 2 herein),essentially on the consideration that identically placed co-accused personshad already been granted bail. The appellant has, inter alia, pointed outthat the order granting bail to one of the alleged identically placed co-Eaccused has been disapproved by this Court in the judgment and orderdated 15.03.2021, as passed in Criminal Appeal No. 317 of 2021 arisingout of SLP(Crl.) No. 6744 of 2020.

3. Briefly put, the relevant background aspects of the matter areFas follows: The appellant had lodged the First Information Report on10.07.2019 at about 09:08 p.m. with the allegations that his son Danishwas attacked with knife and sharp weapons by as many as 7 personswhen he was coming from his house for milking the cattle. It was furtheralleged that the victim Danish sustained grievous injuries because ofsuch assault and died on the spot. Two persons, Nisar and Jalil, wereGsaid to be the eye-witnesses to the incident. As many as 8 ante-morteminjuries were detected on the person of the deceased, most of which hadbeen either incise wounds or stab wounds on and around the neck andthe chest. One of the accused persons, Imran, was arrested on 11.07.2019.

H1 ‘IPC’, for short.

H1 ‘IPC’, for short.

As per the assertion of the Investigating Officer, the other accusedpersons, including the present respondent No. 2, remained abscondingwhere for, non-bailable warrants and then, even proclamation underSection 82 of the Code of Criminal Procedure, 1973 were issued. Theother accused persons surrendered or were apprehended on differentdates. The respondent No. 2 surrendered on 02.09.2019.

4. The application for bail moved on behalf of the respondent No.2 was declined by the Sessions Court and then, the first bail applicationmoved on his behalf in the High Court, being Criminal Misc. BailApplication No. 4842 of 2020 came to be dismissed on 10.02.2020 fornon-prosecution. Thereafter, the respondent No. 2 moved the secondbail application bearing No. 20894 of 2020 that has been considered andallowed by the High Court by the impugned order dated 03.12.2020.Before that, the bail application of one of the co-accused, Fahim, bearingNo. 6083 of 2020 was allowed by the High Court on 25.02.2020.

5. As regards the second bail application moved on behalf of therespondent No. 2, the frontal submission had been that identically placedpersons had been granted bail and, therefore, he was also entitled to thesame relief on parity. This submission was considered by the High Courtand only for this reason that the co-accused had been granted bail, theHigh Court proceeded to accept the application made on behalf of therespondent No. 2 and ordered his release on bail with certain conditions.The relevant aspects of the order impugned, carrying the submissionsmade on behalf of the appellant, the opposition by the counsel for theState and consideration of the High Court, could be usefully reproducedas under: - “Learned counsel for the applicant argued that applicant hasbeen falsely implicated in the present case. There are generalallegations against all the accused persons. It is next submittedthat co-accused, namely, Faim, Nasir and Qamruddin have beengranted bail by co-ordinate Benches of this Court in Criminal Misc.Bail Application Nos. 6083 of 2020, 11840 of 2020 and 21839 of2020 vide orders dated 25.2.2020, 17.6.2020 and 26.8.2020respectively. Copy of the order granting bail to co-accused Faimhas been annexed at page no. 60 to the affidavit filed in support ofthe bail application while copy of the orders granting bail to Nasirand Qamruddin has been produced today in Court, which are taken A

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Aon record. It is argued that the case of the applicant stands onidentical footing as that of co-accused who have been grantedbail, hence, he may be granted bail on ground of parity. It has alsobeen pointed out that the applicant is not having any criminal historyas stated in para-21 of the affidavit and he is in jail since 2.9.2019and there is no likelihood of early conclusion of trial and hence,Bthe applicant may be released on bail during pendency of trial.

Per contra, learned brief holder for the State opposed the prayerfor bail but could not dispute the fact that the applicant has nocriminal antecedents.

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After having heard the learned counsel for the parties and lookingto the fact that identically placed co-accused persons have beengranted bail by this Court, therefore, the applicant be released onbail.”

6. In this matter, on 12.07.2021, this Court granted permissionDto the present appellant to file the petition for leave to appeal andissued notices to the respondents. Detailed counter affidavits havebeen filed on behalf of the State as also on behalf of the respondentNo. 2. While the State has supported the contentions urged on behalfof the appellant, the respondent No. 2 has opposed, while supportingEthe order impugned.

7. Learned counsel appearing on behalf of the appellant hasargued in the first place that the High Court granted bail to therespondent No. 2 only for the reason of the orders passed in favour ofthe co-accused persons, including the order dated 25.02.2020 grantingFbail to the co-accused Fahim but then, the order so passed by the HighCourt in favour of the co-accused was not approved by this Court andwas set aside by the judgment and order dated 15.03.2021 in CriminalAppeal No. 317 of 2021. In this view of the matter, according to thelearned counsel, the very basis of grant of bail to the respondent No. 2having been knocked out, the impugned order cannot sustain itself andGdeserves to be set aside.

7.1. Learned counsel for the appellant has further submitted thatwhile granting bail to the respondent No. 2, the High Court has totallyomitted to consider that the present case had been of a broad day-lightmurder of the son of the appellant in brutal and gruesome manner whereH

7 persons attacked him with sharp weapons and caused as manyas8grievous injuries on vital parts of the body. In such a matter, thelearned counsel has contended, the order granting bail even beforecommencement of the trial suffers from gross illegality and improprietyand, therefore, deserves to be set aside.

8. Learned counsel for the State has duly supported thesubmissions made on behalf of the appellant and has submitted that theimpugned order deserves to be set aside.

9. Learned counsel for the respondent No. 2, on the other hand,has countered the submissions made on behalf of the appellant and theState, and has contended that the impugned order does not call forinterference merely because this Court has set aside the order grantingbail to the co-accused Fahim.

9.1. Learned counsel for the respondent No. 2 has contendedthat in the said order dated 15.03.2021, the major aspects had been thatno counter-affidavit was filed on behalf of the respondent-accused andthen, on the date of hearing, learned counsel appearing for the said co-accused sought an adjournment, which was declined by the Court. Thus,according to the learned counsel, the order dated 15.03.2021 does notoperate against the interests of respondent No. 2.

9.2. Learned counsel has further submitted that a strong case forgrant of bail in favour of the respondent No. 2 was made out, andtherefore, the High Court had rightly granted him bail. In support ofthese submissions, learned counsel has relied upon the factors that therespondent No. 2 had been in custody since 02.09.2019; that he had nonegative antecedents or adverse records; that no specific role has beenassigned to him as regards the incident in question; and that the story ofthe prosecution appears to be palpably false for the scientific reasonthat 7 accused persons could not have inflicted injuries on the body ofthe decease with 7 knives at the same time.

9.3. Learned counsel has further submitted that the statement ofthe present appellant had already been completed in the trial and therehad not been any allegation of tempering with the witnesses. Thus,according to the learned counsel, the impugned order granting bail to therespondent No.2 does not call for interference.

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10. In rejoinder submissions, learned counsel for the appellant hassubmitted that the eye-witnesses, namely Nasir and Jalil, are yet to beexamined and looking to the nature of the accusations and the orderpassed by this Court in relation to the co-accused person, the impugnedorder deserves to be set aside.

11. Having given anxious consideration to the rival submissionsand having examined the record, we are clearly of the view that theimpugned order dated 03.12.2020 cannot be approved from anystandpoint.

12. A perusal of the order impugned makes it clear that in essence,Cthe principal part of submissions before the High Court on behalf of thepresent respondent No. 2, while seeking bail, had been that the co-accusedpersons had been granted bail and he was entitled to the same relief onthe ground of parity because his case was standing on identical footing.The other submissions had been that the respondent No. 2 was in custodyDsince 02.09.2019; that he had no criminal history; and that trial waslikely to take time. The High Court did not consider any other aspect ofthe matter at all and proceeded to grant bail to the respondent No. 2 onlyfor the reason that the so-called identically placed co-accused personshad already been granted bail. The fact that the order granting bail to theco-accused Fahim met with its strong disapproval by this Court remainsErather indisputable.

13. In the judgment and order dated 15.03.2021, this Court tooknote of the fact that the High Court had granted bail to the co-accusedwhile ignoring the relevant considerations and with a mere reference tothe mandate of Article 21 of the Constitution of India. The relevantFobservations and comments by this Court in the judgment and orderdated 15.03.2021 could be usefully extracted asunder: - “7 The circumstances would indicate that a brutal murder hasbeen committed of the son of the appellant. The postmortem reportGwould indicate as many as eight ante mortem injuries. The offenceis alleged to have taken place in broad day light. The FirstInformation Report being Case Crime No 438 of 2019 wasregistered at about 2108 hours, within a period of four hours ofthe incident which is alleged to have taken place at 1715 hours onthe same day. After the investigation was completed, the charge- H

sheet has been submitted before the competent court under Section173 of the Code of Criminal Procedure 1973. In several judgmentsof this Court, the need for the High Court to adduce reasons whilegranting bail has been underscored. At this stage, we may advertto the recent decision in Mahipal vs Rajesh Kumar[2], which wasrelied on by Ms Bansuri Swaraj, learned counsel for the State ofUP. Speaking for a two-Judge Bench, one of us (Justice D YChandrachud, J) observed:

“25. Merely recording “having perused the record” and “onthe facts and circumstances of the case” does not subservethe purpose of a reasoned judicial order. It is a fundamentalpremise of open justice, to which our judicial system iscommitted, that factors which have weighed in the mind of theJudge in the rejection or the grant of bail are recorded in theorder passed. Open justice is premised on the notion that justiceshould not only be done, but should manifestly and undoubtedlybe seen to be done. The duty of Judges to give reasoneddecisions lies at the heart of this commitment. Questions ofthe grant of bail concern both liberty of individuals undergoingcriminal prosecution as well as the interests of the criminaljustice system in ensuring that those who commit crimes arenot afforded the opportunity to obstruct justice. Judges areduty-bound to explain the basis on which they have arrived ata conclusion.

27. Where an order refusing or granting bail does not furnishthe reasons that inform the decision, there is a presumption ofthe non-application of mind which may require the interventionof this Court.”

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, the AB

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Aliberty 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 to account.Having regard to the settled principles which govern the grant ofbail in a matter involving a serious offence in a case such as thepresent, we are of the view that the order of the High Court doesBnot clearly pass muster. No case for the grant of bail is made out.In granting bail, the High Court has failed to notice relevantconsiderations which ought to have been, but have not been takeninto account.

C9 In the above circumstances, we allow the appeal and set asidethe impugned judgment and order of the High Court dated 25February 2020. As a consequence of this order, the secondrespondent shall surrender forthwith.”

14. The position aforesaid equally applies to the present case too.DMoreover, when the bail granted to co-accused person has beendisapproved by this Court and such grant of bail to co-accused had beenthe only reason for which the bail was granted to the respondent No. 2,the impugned order is liable to be set aside.

15. The submissions on behalf of the respondent No. 2 that thereEwas no proper contest on behalf of the said co-accused in this Courtcould hardly take away the substance of the dictum of this Court. It isclear that in said case, the High Court had proceeded in a rather cursorymanner and without regard to the salient feature of the case at hand,being that of gruesome day-light murder of the son of the appellant withF8grievous injuries, including those of incise wounds and stab wounds onand around the neck and the chest.

16. As regards the case of respondent No. 2, we are constrainedto observe that even if the High Court proceeded to consider the factthat the co-accused person had been granted bail, at least this much wasGrequired that the relevant facts of the case were indicated as also thereasons as to how the case of respondent No. 2 was treated to beidentical. The relied upon order had been suffering from failure on thepart of the High Court to notice the relevant considerations and theimpugned order equally suffers from the shortcoming that the relevantfeatures of the case have not at all been considered by the High Court.H

17. The submissions that the respondent No. 2 had been in custodysince 02.09.2019 or that he had no negative antecedents, by themselves,do not make out a case for grant of bail, looking to the seriousness ofcrime in question. In this regard, the submissions of the InvestigatingOfficer cannot go unnoticed that while the incident took place on10.07.2019 and one of the accused persons was arrested on 11.07.2019,the other accused persons remained absconding and the respondent No.2 surrendered as late as on 02.09.2019. So far the questions relating tothe role assigned to the respondent No. 2 or about the doubt on theprosecution case, suffice it to observe at the present stage that therespondent No. 2 has specifically been named in the FIR as one of theassailants; and looking to the nature of the accusations and the nature ofinjuries, the prosecution case, prima facie, cannot dubbed as fanciful orimprobable.

18. For what has been noticed hereinabove, the impugned orderis required to be set aside.

19. We have pondered over the question as to the order thatneeds to be passed in this matter finally. It is noticed that in the judgmentand order dated 15.03.2021, this Court disapproved the order dated15.02.2020 granting bail to the co-accused and directed him tosurrender forthwith. More or less the same position would apply to thepresent case too. Herein, the order granting bail was passed on03.12.2020 and the present matter was initially taken up forconsideration on 12.07.2021. Even if one witness, that is, the presentappellant, has already been examined, the other witnesses, includingthe eye-witnesses, are to be examined in the trial. In the givencircumstances and in the interest of justice, we also deem it proper toleave it open for the respondent No. 2 to apply for bail afresh aftersurrendering and at an appropriate stage.

20. Accordingly and in view of above, this appeal is allowed; theimpugned order dated 03.12.2020 is set aside with the requirement thatthe respondent No. 2 shall surrender forthwith. In the interest of justice,it is provided that if the respondent No. 2 applies for bail afresh aftersurrendering and at an appropriate stage, such an application may beconsidered on its own merits.

21. In the interest of justice, it is also made clear that we have notpronounced on the merits of the case either way and none of the A

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[2022] 19 S.C.R.

Aobservations herein, by itself, would operate prejudicial to the interestsof the parties nor shall have any bearing on the final verdict by the TrialCourt.

22. All pending applications also stand disposed of.

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Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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