Supreme Court Explains Factors to be Considered While Granting Bail in Cases Involving Serious Offences

INTRODUCTION

It must be stated that while ruling on a very significant point, the Apex Court in a most learned, laudable, landmark, logical and latest judgment titled Ajwar vs Waseem and Another arising out of petition for Special Leave to Appeal (Criminal) No.513 of 2023 and 3 Others and cited in Neutral Citation No.: 2024 INSC 438 that was pronounced as recently as on May 17, 2024 has explained the numerous factors that are to be considered while granting bail in the cases involving serious offences. It must be certainly mentioned here that the Apex Court Bench comprising of Hon’ble Ms Justice Hima Kohli and Hon’ble Mr Justice Ahsanuddin Amanullah was dealing primarily with the appeal challenging the order that had been passed by the Allahabad High Court. It must be noted that in this case, the appellant-complainant, along with his two sons Abdul Khaliq and Abdul Majid, and others, were at their home preparing to break their fast and offer prayers.

At this juncture, it must be noted that ten individuals named Nazim, Abubakar, Waseem, Aslam, Gayyur, Nadeem, Hamid, Akram, Qadir, and Danish—arrived and then began firing indiscriminately. This attack resulted in the deaths of Abdul Khaliq and Abdul Majid on the spot, and serious injuries to their cousin Asjad. We must note that in this leading case we see that the appellant-complainant attributed the attack to a pre-existing enmity between the parties.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Hima Kohli for a Bench of the Apex Court comprising of herself and Hon’ble Mr Justice Ahsanuddin Amanullah sets the ball in motion by first and foremost putting forth in para 2 that, “The present appeals are directed against four different orders passed by the learned Single Judges of the High Court of Judicature at Allahabad on applications moved by Waseem (accused No. 7)1 , Nazim (accused No. 8) 2 , Aslam (accused No. 2) 3 and Abubakar (accused No.1)4 under Section 439 Code of Criminal Procedure, 19735 for seeking regular bail in respect of Case Crime No.126 of 2020 registered at Police Station Mundali, District Meerut, Uttar Pradesh for offences punishable under Sections 147, 148, 149, 302, 307, 352 and 504 read with Section 34 of Indian Penal Code, 18606 . Vide orders dated 07th December, 2022, 13th February, 2023 and 02nd March, 2023 and 21st March, 2023 respectively, the applications filed by Waseem, Nazim, Aslam and Abubakar were allowed by different Benches of the High Court. Aggrieved by the said orders, the appellant-Complainant has approached this Court.”

BRIEF FACTS

To put things in perspective, the Bench envisages in para 3 while elaborating briefly on facts of case that, “The relevant facts of the case, as recorded in a First Information Report7 registered on the complaint received from the appellant – complainant herein on 19th May, 2020, are that the incident in question had taken place on 19th May, 2020 at 7.30 in the evening when the appellant-complainant, his two sons, Abdul Khaliq and Abdul Majid with some other persons were sitting in the baithak of his house for breaking the fast (Roza Iftar) and preparing to offer prayers. The accused persons (10 in number, namely, Nazim, Abubakar, Waseem, Aslam, Gayyur, Nadeem, Hamid, Akram, Qadir and Danish) arrived at the spot and indiscriminately fired at the appellant and his two sons. Both the sons of the appellant died on the spot and his nephew, Asjad was seriously injured. The appellant-complainant has alleged that there was previous enmity between the parties due to which the accused persons had attacked him and his sons.”

Do note, the Bench discloses in para 4 that, “Pertinently, Niyaz Ahmed, father of Waseem (accused No. 7) was not named in the FIR. His role in the incident came up during the course of the investigation conducted by the police and based thereon, his name was added as a co-accused. On completion of the investigation, a chargesheet was submitted under Section 173 Cr.P.C. on 23rd June, 2020 against eight accused including Abubakar (accused No. 1), Niyaz Ahmad, Aslam (accused No.2) and Nazim (accused No. 8). Aslam is the nephew of Nazir and Nazim is the cousin of Waseem, whose father, Niyaz Ahmad was enlarged on bail by the High Court, vide order dated 4th August 2022, which order was set aside by this Court on 30th September, 2022 in a Criminal Appeal (Criminal Appeal No. 1722 of 2022) filed by the appellant-complainant. Three other accused were not found to be involved in the offence and on conclusion of the investigation, no chargesheet was filed against them.”

RELEVANT PARAMETERS FOR GRANTING BAIL

Most significantly, the Bench then spells out in para 26 what constitutes the cornerstone of this notable judgment stating that, “While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. (Refer: Chaman Lal v. State of U.P. and Another (2004) 7 SCC 525; Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and Another(supra); Masroor v. State of Uttar Pradesh and Another (2009) 14 SCC 286; Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496; Neeru Yadav v. State of Uttar Pradesh and Another42; Anil Kumar Yadav v. State (NCT of Delhi) and Another (2018 12 SCC 129); Mahipal v. Rajesh Kumar @ Polia and Another(supra).”

DISCUSSION

It is worth noting that the Bench notes in para 30 that, “Keeping in mind the aforesaid parameters, we may now proceed to examine the pleas taken by the parties so as to decide as to whether the impugned orders can be sustained or not. On a careful consideration of the entire records, we are inclined to agree with submission made by learned counsel for the appellant-complainant that the impugned orders are unjustified and suffer from grave infirmity. The primary factor that has swayed the learned Single Judge of the High Court in granting bail to the accused Waseem is that even though the prosecution version is that 11 accused persons had assaulted the appellant-complainant and members of his family on indiscriminate firing taking place, only three persons had sustained injuries and two had expired on the side of the appellant-complainant. At the same time, serious injuries were also received on the side of the accused which could not be explained by the prosecution. In the case of the accused Nazim, the High Court observed that there was no distinction between the role attributed to him and the co-accused Waseem and that the injuries suffered on the side of the respondent had not been explained by the prosecution. The High Court has also gone on to observe that the investigation conducted by the police was one-sided and the case set up by the accused side was ignored. In the case of Aslam, his bail application was allowed and learned Single Judge observed that there is a cross-version of the incident inasmuch as the accused side had also received serious injuries which were not satisfactorily explained by the prosecution. In the case of Abubakar, noting that the co-accused Aslam was granted bail by a coordinate Bench and the case of Abubakar was similar to that of Aslam, he was granted the benefit of bail on grounds of parity.”

Most forthrightly, the Bench while taking potshots at the ruling and findings of the Allahabad High Court postulates in para 31 that, “In our opinion, the High Court has completely lost sight of the principles that conventionally govern a Court’s discretion at the time of deciding whether bail ought to be granted or not. The High Court has ignored the fact that the appellant-complainant has stuck to his version as recorded in the FIR and that even after entering the witness-box, the appellant-complainant and three eyewitnesses have specified the roles of the accused-respondents in the entire incident. The High Court has also overlooked the fact that the respondents have previous criminal history details whereof have been furnished by the Counsel for the State of UP. It is worthwhile to note that the accused Nazim was granted bail in FIR No. 214 of 2016 on 10th January, 2017 and while on bail, he is alleged to have committed a double murder of the two sons of the appellant-complainant.”

Adding more to it, the Bench notes in para 32 that, “To top it all, while on bail, there have been allegations that three of the accused-respondents herein have threatened one of the key eye-witnesses, Abdullah (PW-2) in open Court, thrashed him and threatened to kill him in the Court premises. On his approaching the trial Court for police protection, appropriate orders were passed in his favour and an FIR got registered (FIR No. 95 of 2023). Though the police had filed a closure report, dissatisfied with the same, the Magistrate has directed further investigation. The attempt to delay the trial on the part of the respondents has also surfaced from the records.”

Above all, it cannot be just glossed over that the Bench while pooh-poohing the verdict of the Allahabad High Court points out in para 33 that, “Furthermore and most importantly, the High Court has overlooked the period of custody of the respondents-accused for such a grave offence alleged to have been committed by them. As per the submission made by learned counsel for the State of UP, before being released on bail, the accused-Waseem had undergone custody for a period of about two years four months, the accused-Nazim for a period of two years eight months, the accused-Aslam for a period of about two years nine months and the accused Abubakar, for a period of two years ten months. In other words, all the accused-respondents have remained in custody for less than three years for such a serious offence of a double murder for which they have been charged.”

Be it noted, the Bench notes in para 34 that, “Learned Counsel for the appellants and the State of UP have also informed this Court that in the cross-FIR filed by Smt. Saeeda Begum (w/o Niyaz Ahmad mother of Waseem) at the instance of the accused persons, a closure was filed by the police. Vide order dated 04th September, 2023, the Magistrate issued notice to the complainant in the cross-FIR. A protest petition has been filed by the complainant herein which is pending arguments. In the meantime, the appellant herein moved an application in the captioned case stating that though three affidavits (of Usman Ali, Alenbi and Farhana) were annexed with the protest petition to support the cross-complaint, on being examined, all three persons have denied having sworn the said affidavits. Accordingly, the appellant has filed an application under Section 340 Cr.P.C against the complainant in the cross-FIR which has been registered vide order dated 15th January, 2024 and is due to come up for arguments.”

CONCLUSION

Finally and as a corollary, the Bench then concludes by holding in para 35 that, “All the aforesaid factors when examined collectively, leave no manner of doubt that the respondents do not deserve the concession of bail. As a result, all the four impugned orders are quashed and set aside. The respondents are directed to surrender within two weeks from the date of passing of this order. It is, however, clarified that the observations made above are limited to examining the infirmities in the impugned orders and shall not be treated as an opinion on the merits of the matter which is still pending trial. It is also clarified that in the event of any new circumstances emerging, the respondents shall be entitled to apply for bail at a later stage.”

All told, we thus see that the Supreme Court has shed adequate light on the numerous factors that are to be considered seriously while granting bail in cases involving serious offences. It is thus definitely the bounden duty of all the Courts including the High Courts to pay heed to what has been directed by the Apex Court in this leading case. No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.