IMRAN versus MR. MOHAMMED BHAVA & ANR on 22 April 2022

1. Leave granted

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2. These two appeals are directed against the judgments and ordersdated 08.02.2021 and 19.10.2020 passed by the High Court of Karnatakaat Bengaluru in Criminal Petition No. 6052/2020 and Criminal PetitionNo. 3902/2020 respectively. Respondent No. 1 herein, in the two petitions,namely Mohammed Bhava & Mohammed Musthafa, have been arrayedEas Accused No. 6 and Accused No. 8 in FIR No. 38/2020 dated05.06.2020. The said Respondents, along with eight other co-accused,have been charged for offences under sections 143, 147, 148, 341, 307,302, 395 of Indian Penal Code (hereinafter referred as ‘IPC’), readwith section 149 of IPC. The High Court vide orders impugned hereinhas allowed the anticipatory bail application and bail applicationFrespectively, of the two Respondents.

Factual Matrix

Facts

Factual Matrix

3. The Appellant herein (original complainant) is the son of AbdulLathif (deceased). On 05.06.20, initially, an FIR was registered underGsections 143, 147, 148, 341, 307, 302, 395 IPC, read with section 149 ofIPC. Post investigation, sections 114, 109 and 120B of IPC were alsoadded in the charge sheet. The said FIR listed ten individuals as beingaccused for committing offences under the above said sections.

4. It is the case of the prosecution that Accused No. 1 - DavoodHHakim, who had an enmity with C.W.2- one Badrul Muneer, hatched a conspiracy with all other accused to eliminate C.W.2. Pursuant to thiscommon objective, Accused No. 2 to 10, came on a bike and car, attackedC.W.s 1(the Appellant), 2 (Badrul Muneer) and 3 (Hiyaz), with sodabottle and stones, and subsequently murdered the deceased -Abdul Lathif.The injured witnesses, the deceased and the appellant herein (complainant)are relatives. Badrul Muneer (C.W.2) being the son-in-law of thedeceased – Abdul Latif. The detailed factual matrix is as follows:

5. On 05.06.20 at around 4.00 PM to 4.05 PM, as the Appellantalong with other two C.Ws and deceased, was returning from HDFCBank, Mulki Branch, when Accused No. 2 to 10 intercepted the car ofC.W.2, Badrul Muneer. While Accused No. 2 and 3, started abusingBadrul Muneer and and thereafter assaulted him and his son Hiyaz (C.W.3) with a knife and wooden club, Accused No. 4 and 7 too joined in, andassaulted Badrul Muneer with a soda bottle and concrete stonerespectively.

6. Upon seeing his son-in-law Badrul Muneer being brutallyassaulted, the deceased- Abdul Lathif intervened. However, as thedeceased intervened, Accused No. 6, Mohammed Bhava (RespondentNo. 1 herein, in S.L.P (CRL.) No. 27 of 2022) pushed him. The saidAccused No. 6 further stated that ‘this was not the only thing and thathe would have more’. Resultantly, all other accused (including Musthafa,Accused No. 8 i.e., Respondent No. 1, in S.L.P (CRL.) No. 1242 of2022) chased the deceased and assaulted him with their deadly weapons,as he fell down near the entrance of the bank, resulting in his death.

7. Subsequent to this incident, Accused No. 8 (Respondent No. 1,in S.L.P (CRL.) No. 1242 of 2022), filed a regular bail application whichwas rejected by the sessions court. Eventually investigation was alsocompleted and a charge sheet was filed against all accused on the basisof witness statements, recovered articles, medical opinion, and FSLreport.

8. Thereafter, Accused No. 6 (Respondent No. 1 herein, in S.L.P(CRL.) No. 27 of 2022) filed an anticipatory bail application before thesessions court, which was also rejected vide judgment dated 14.10.2020.

9. Aggrieved, both the Accused No. 6 and 8, preferred applicationsbefore the High Court which were allowed vide impugned judgmentsand orders dated 08.02.2021 and 19.10.2020, in Criminal Petition No.6052/2020 and Criminal Petition No. 3902/2020 respectively.

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10. Vide impugned judgments, the High Court observed that sinceother co-accused were also granted bail therefore relief sought by theAccused Respondents No. 1 herein, in the two petitions could be granted.

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11. However, subsequently, the High Court vide its judgment andorder dated 26.08.21 cancelled bails granted to all other accused presentBat the scene of offence i.e. Accused No. 2,3,4,7,9 &10. This cancellationorder has been upheld by this court vide order dated 20.10.21 in SLP(Crl.) No. 7586-7592 of 2021. Further, the regular bail granted to theprime accused i.e., Accused No. 1, by the High Court was also challengedbefore this court. This court vide final order dated 11.01.2022 allowedthe appeal, and set aside the order of the High Court granting bail toCAccused No. 1.

Contentions made by the Appellant

Contentions made by the Appellant

12. The aggrieved complainant herein, inter-alia, contends thatthe High Court vide impugned orders has erred in not considering theDgravity of the offences, and has overlooked the version of eye-witnesses,and other material available on record. Therefore, vide impugned orders,the High Court has brushed aside prima-facie vital material on recordavailable against both the Respondents herein, i.e. Accused No. 6 and 8.Both the accused had instigated and participated in the commission of aheinous crime and therefore were not entitled to any discretionary reliefEat all.

13. It is further contended that the impugned orders suffer fromnon-application of mind to the extent that the court below failed to considerthe gravity and nature of offence, committed by both the accusedRespondents herein. The High Court thus erred in not considering thatFgranting bail to both the accused, who are involved in a premeditatedmurder case, would pose significant threat to all prosecution witnesses.

14. The Appellant further emphasizes upon the judgment of thisCourt in Ram Govind Upadhyay Vs. Sudarshan Singh and Others[1]wherein it has been observed that grant of bail though discretionary,Gcalls for exercise of such discretion in a judicious manner.

Grant of bail though being a discretionary order but, however,calls for exercise of such a discretion in a judicious manner andnot as a matter of course. Order for Bail bereft of any cogent H1 (2002) 3 SCC 598

reason cannot be sustained. Needless to record, however, thatthe grant of bail is dependent upon the contextual facts of thematter being dealt with by the Court and facts however do alwaysvary from case to case. While placement of the accused in thesociety, though may be considered but that by itself cannot be aguiding factor in the matter of grant of bail and the same shouldand ought always be coupled with other circumstances warrantingthe grant of bail. The nature of the offence is one of the basicconsideration for the grant of bail more heinous is a crime, thegreater is the chance of rejection of the bail, though, however,dependent on the factual matrix of the matter.

15. Lastly, it is also contended that all the remaining accused, i.e.,Accused No. 1,2,3,4,5,7,9 & 10, whose bails were subsequently cancelledby the High Court and this Court, have not surrendered as yet. On thecontrary, they have been threatening the appellant as well as other eye-witnesses involved in the trial.

Contentions made by Accused No 6: Respondent No. 1 inS.L.P (Crl.) No. 27 of 2022

16. Accused No.6 contends that the Appellant is well aware thatthe said accused actually had no role in the offence, and that he wasnamed in the FIR merely out of personal animosity. That the said accused,was merely trying to separate the people involved in the act. However,upon his failure to do so, he simply moved away from the group.

17. It is further contended that this court in case of ArnabManoranjan Goswami Vs. State of Maharashtra & Ors.[2], hasreiterated that the basic rule behind bail jurisprudence is to grant bail andnot jail. That there is no material on record to suggest that the presentaccused participated in the commission of the alleged offence. Even theallegation of instigation is hollow and cannot be proved.

Contentions made by Accused No 8: Respondent No. 1 inS.L.P (Crl.) No. 1242 of 2022

18. Accused No.8 contends that his name was only added to theFIR by way of a subsequent statement made by the appellant undersection 161 Cr.P.C. and that the appellant herein, has merely becometool at the hands of CW-2 i.e. Badrul Muneer and his family.

2 (2021) 2 SCC 427

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19. It is further contended that the Appellant has made omnibusand sweeping allegations against the answering respondent in the presentSLP which are contrary to the material on record.

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20. The accused Respondent has further referred to variousjudgments of this court to emphasize that very cogent and overwhelmingBcircumstances are necessary for an order directing cancellation of bail.It is also stated that bail once granted cannot be cancelled in a mechanicalmanner without considering whether any supervening circumstances haverendered it inconducive to allow fair trial.

(See Daulat Ram and Others v. State of Haryana (1995) 1CSCC 349, State (Delhi Admn) v. Sanjay Gandhi (1978) 2 SCC411, Kashmira Singh v. Duman Singh (1996) 4 SCC 693, CBIv. Subramani Gopalkrishnan (2011) 5 SCC 296, X v. State ofTelangana (2020) 16 SCC 511)

AnalysisD

21. Having perused the relevant facts and contentions made bythe Appellant and the Respondents herein, in our considered opinion, thekey issue which requires determination in the instant case is whether theHigh Court has exercised its discretion in a mechanical manner i.e.,whether the impugned orders of the High Court have over-lookedEestablished principles, while exercising discretion to enlarge both theaccused on bail.

22. Before we undertake an analysis of the nature of materialavailable against the accused Respondents, it is pertinent to address thecontention raised by Accused No. 8 emphasizing that cogent andFoverwhelming circumstances are necessary for an order directingcancellation of bail. Further, cancellation of bail is contingent uponsupervening circumstances which might render it difficult to hold a fairtrial.

23. Indeed, it is a well-established principle that once bail hasbeen granted it would require overwhelming circumstances for itsGcancellation. However, this Court in its judgment in Vipan Kumar DhirVs. State of Punjab and Anr.[3 ]has also reiterated, that whileconventionally, certain supervening circumstances impeding fair trial mustdevelop after granting bail to an accused, for its cancellation by a superior H3 2021 SCC OnLine SC 854

court, bail, can also be revoked by a superior court, when the previouscourt granting bail has ignored relevant material available on record,gravity of the offence or its societal impact. It was thus observed:- “9. …… Conventionally, there can be superveningcircumstances which may develop post the grant of bail andare non conducive to fair trial, making it necessary to cancelthe bail. This Court in Daulat Ram and Others Vs. State ofHaryana observed that:

“Rejection of bail in a non-bailable case at the initial stageand the cancellation of bail so granted, have to beconsidered and dealt with on different basis. Very cogentand overwhelming circumstances are necessary for anorder directing the cancellation of the bail, alreadygranted. Generally speaking, the grounds for cancellationof bail, broadly (illustrative and not exhaustive) are:interference or attempt to interfere with the due course ofadministration of Justice or evasion or attempt to evadethe due course of justice or abuse of the concessiongranted to the accused in any manner. The satisfaction ofthe court, on the basis of material placed on the record ofthe possibility of the accused absconding is yet anotherreason justifying the cancellation of bail. However, bailonce granted should not be cancelled in a mechanicalmanner without considering whether any superveningcircumstances have rendered it no longer conducive to afair trial to allow the accused to retain his freedom byenjoying the concession of bail during the trial.”

10. These principles have been reiterated time and again,more recently by a 3 Judge Bench of this Court in X Vs.State of Telegana and Another.

11. In addition to the caveat illustrated in the citeddecision(s), bail can also be revoked where the court hasconsidered irrelevant factors or has ignored relevantmaterial available on record which renders the ordergranting bail legally untenable. The gravity of the offence,conduct of the accused and societal impact of an undueindulgence by Court when the investigation is at thethreshold, are also amongst a few situations, where a A

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Superior Court can interfere in an order of bail to preventthe miscarriage of justice and to bolster the administrationof criminal justice system…”

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24. Earlier also this Court, in case of Ram Govind UpadhyayVs. Sudarshan Singh and Others[4] has observed:

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“9. …..Undoubtedly, considerations applicable to the grantof bail and considerations for cancellation of such an orderof bail are independent and do not overlap each other, but inthe event of non- consideration of considerations relevantfor the purpose of grant of bail and in the event an earlierorder of rejection available on the records, it is a dutyincumbent on to the High Court to explicitly state the reasonsas to why the sudden departure in the order of grant as againstthe rejection just about a month ago….”

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25. Similarly, in the case of Prasanta Kumar Sarkar Vs. AshisDChatterjee and Anr.[5], it has been observed:

“9. We are of the opinion that the impugned order is clearlyunsustainable. It is trite that this Court does not, normally,interfere with an order passed by the High Court granting orrejecting bail to the accused. However, it is equally incumbentupon the High Court to exercise its discretion judiciously,cautiously and strictly in compliance with the basic principleslaid down in a plethora of decisions of this Court on the point.It is well settled that, among other circumstances, the factorsto be borne in mind while considering an application for bailare: (i) whether there is any prima facie or reasonable groundto believe that the accused had committed the offence; (ii)nature and gravity of the accusation; (iii) severity of thepunishment in the event of conviction; (iv) danger of theaccused absconding or fleeing, if released on bail; (v)character, behaviour, means, position and standing of theaccused; (vi) likelihood of the offence being repeated; (vii)reasonable apprehension of the witnesses being influenced;and (viii) danger, of course, of justice being thwarted by grantof bail.

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4 (2002) 3 SCC 598H5 (2010) 14 SCC 496

10. It is manifest that if the High Court does not advert tothese relevant considerations and mechanically grants bail,the said order would suffer from the vice of non-applicationof mind, rendering it to be illegal. In Masroor (supra), aDivision Bench of this Court, of which one of us (D.K. Jain,J.) was a member, observed as follows: “Though at the stageof granting bail an elaborate examination of evidence anddetailed reasons touching the merit of the case, which mayprejudice the accused, should be avoided, but there is a needto indicate in such order reasons for prima facie concludingwhy bail was being granted particularly where the accusedis charged of having committed a serious offence.” (2005) 8SCC 21 (2001) 4 SCC 280 (2002) 3 SCC 598 (See also: Stateof Maharashtra Vs. Ritesh5; Panchanan Mishra Vs.Digambar Mishra & Ors.6; Vijay Kumar Vs. Narendra &Ors.7; Anwari Begum Vs. Sher Mohammad & Anr8)”

26. Thus, while considering cancellation of bail already grantedby a lower court, would indeed require significant scrutiny at the instanceof superior court, however, bail when granted can always be revoked ifthe relevant material on record, gravity of the offence or its societalimpact have not been considered by the lower court. In such instances,where bail is granted in a mechanical manner, the order granting bail isliable to be set aside. Moreover, the decisions cited herein above,enumerate certain basic principles which must be borne in mind whendeciding upon an application for grant of bail. Thus, while each case hasits own unique factual matrix, which assumes a significant role indetermination of bail matters, grant of bail must also be exercised byhaving regard to the above-mentioned well-settled principles.

27. Coming to the instant factual matrix, having gone through theimpugned orders passed by the High Court granting bail to Accused No.6 and Accused No. 8, the two accused Respondents herein, we find theHigh Court has mainly released them on the ground that there were noprima-facie materials available against them and that no specific overt-act had been attributed to them.

28. However, a perusal of the charge sheet and other materialavailable on record, particularly the statements of all the eye-witnesses,clearly indicates that Accused No. 2 to 10 on the basis of a conspiracyhatched by Accused No. 1, had assaulted CW-2 (Badrul Munner), and AB

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ACW-3 (Hiyaz). Subsequently, upon seeing the Badrul Munner and Hiyaz,being brutally assaulted by the said Accused No. 2 to 10, as the deceasedAbdul Lathif intervened, he was chased down by all the said accused,and murdered.

29. Here it becomes pertinent to mention that the statement ofBmore than fifteen witnesses suggests that all the accused had assaultedthe said injured witnesses and deceased, Abdul Lathif pursuant to acommon object. Furthermore, medical opinion and Forensic ScienceLaboratory (FSL) report also corroborate the weapons used by theaccused, as mentioned by the witnesses in their statements.

C30. As far as attribution of specific acts against the accusedRespondents is concerned, it becomes amply clear from the statementof all the witnesses that Accused No. 6 and 8 have indeed participatedin assaulting the deceased. Furthermore, as the accused group continuedits assault, Accused No. 6, instigated them by saying that this wasn’tenough. Thereafter, as perused from the statement of the complainant/Dappellant herein, Accused No. 8 who came on a motorcycle had alsobrutally beaten the deceased with a wooden stick. In addition to thesestatements, there is enough evidence to indicate that a heinous offencewas committed in furtherance of a common objective, and therefore theaccused Respondents should not have been enlarged on bail.E31. The High Court while granting bail to the accused Respondents,thus failed to consider the nature of accusations and relevant evidentiarymaterial against them.32. This court in the case of Neeru Yadav Vs. State of U.P. &Anr.,[6] has also reiterated that:F

“11. It is the duty of the Court to take into considerationcertain factors and they basically are, (i) the nature ofaccusation and the severity of punishment in cases ofconviction and the nature of supporting evidence, (ii)reasonable apprehension of tampering with the witnesses forGapprehension of threat to the complainant, and (iii) Primafacie satisfaction of the court in support of the charge.”33. Applying the ratio of the decisions of this court referred toabove to the facts of the case in hand, we have no hesitation in observing that the High Court erred in not considering the basic principles for grantof bail, well established by various judicial pronouncements. The HighCourt lost sight of the fact that there exists sufficient material againstthe accused Respondents herein, so as to establish a prima facie caseagainst them.

34. Another important fact to be taken note of is that initially, bailgranted to Accused No. 2,3,4,7,9 & 10 by the High Court was cancelledby the High Court itself. The said order has been confirmed by thisCourt vide order dated 20.10.2021 in SLP (Crl.) No. 7586-7592 of 2021.The bail granted to Accused No. 1, has also been cancelled by thisCourt vide order dated 11.02.2022 in Criminal Appeal No. 79/2022.

35. In view of the above facts and for the reasons stated hereinabove, impugned orders dated 08.02.2021 and 19.10.2020 passed by theHigh Court of Karnataka at Bengaluru in Criminal Petition No. 6052/2020 and Criminal Petition No. 3902/2020, releasing the Accused No. 6and 8 on bail, are set aside. Respondents-accused are directed to surrenderbefore the trial court within a period of two weeks from today failingwhich they shall be taken into police custody for the said purpose.

36. The observations made herein are limited to presentproceedings and would not be construed as expression of any opinion byus, on the merit of the case.

37. As a result, the appeals stand allowed on the aforesaid terms.

Devika Gujral

Appeals allowed.

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