Full Judgment Text
1
REPORTABLE
Corrected
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL No.1168 OF 2023
(ARISING OUT OF SLP (CRL.) No.8487 of 2021)
ANSAR AHMAD … APPELLANT
VERSUS
STATE OF UTTAR PRADESH AND ANR … RESPONDENTS
WITH
CRIMINAL APPEAL No.1169 OF 2023
(ARISING OUT OF SLP (CRL.) No.8540 OF 2021)
O R D E R
1. Leave granted.
2. 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 of
2019, filed by the respondent – Subhash Yadav, and Bail Application
No. 4309 of 2019, filed by the respondent – Rajesh Vikram Singh, in
Case Crime No. 17 of 2018 under Sections 147, 148, 149, 307, 302,
120-B/34 IPC and Sections 3/4 of the Explosive Substances Act,
Police Station Jagdishpur, District Amethi were allowed and both
the abovementioned respondents have been enlarged on regular bail.
Signature Not Verified
3. The allegations are that the appellant along with his son –
Digitally signed by
satish kumar yadav
Date: 2023.05.01
17:34:33 IST
Reason:
Ashfaque Ahmad and his companions were present in front of
Jagdishpur Branch of Vijaya Bank when the accused Vanshraj Yadav
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attacked Ashfaque Ahmad by throwing a grenade, and thereafter,
Satai and other accused persons started indiscriminate firing due
to which, Ashfaque Ahmad died on the spot and Razi Ahmad @ Manu
received injuries. Two accused persons were caught hold on the spot
with the help of public. One of them disclosed his name, Amit
Chaubey S/o Vindhyachal Chaubey, resident of Bihar while the second
accused did not disclose his name. Two country made pistols, two
magazines and one mobile phone were recovered from their
possession. During the course of interrogation, accused – Amit
Chaubey disclosed that the respondent (Rajesh Vikram Singh) and his
brother had sent the accused persons for committing the murder of
Ashfaque Ahmad. In the FIR, registered on the statement of the
appellant, it is further mentioned that a sum of Rs. 2, 47, 700/-
cash was 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
one of the respondents (Subhash Yadav) was allegedly present at the
spot at the 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 Rajesh Vikram Singh under Section 302 IPC in which the
above-named respondent was eventually convicted.
5. One of the accused, who allegedly participated in the
occurrence, namely, Satish Kumar @ Satai applied for his bail and
the High Court vide an order dated 03.09.2021 rejected his prayer
observing as follows:
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“Considering the rival submissions of learned
counsel for the parties and going through the contents
of the F.I.R., injury report of the applicant, ante
mortem injury of the deceased and the medico legal
report of the injured Razi as well as the contents of
the F.I.R. No. 168 of 2018 lodged by the wife of the
applicant and also considering the criminal antecedent
so the applicant, I am of the 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 bail
application, the respondents (Subhash Yadav and Rajesh Vikram
Singh) also moved the High Court for their enlargement on bail. In
the case of Subhash Yadav, it was categorically pointed out before
the High Court that he was involved in at least 14 criminal cases
and was already a convict under Section 302 IPC. While on bail in
that case, he was found involved in the murder of Ashfaque Ahmad,
in the bail application of the respondent - Rajesh Vikram Singh,
the High Court was apprised of the fact that there are 26 criminal
cases registered against him, of course, in some of which, he has
already been acquitted and in a few cases, he was on bail. In one
of the cases – Crime No. 229/2004, under Section 302 IPC etc., he
was convicted and in Criminal Appeal No. 497/2008, his conviction
and sentence were suspended.
7. The High Court briefly narrated the prosecution case and
after noticing the contentions from both sides, concluded that
“considering the rival submissions of learned counsel for parties
and going through the contents of FIR, relevant part of the case
diary as discussed above, I am of the opinion that the applicant is
entitled to be released on bail.”
8. The complainant, who is the father of the deceased, being
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aggrieved by the grant of bail to the private respondents, is
before this Court.
9. We have heard learned Senior counsel appearing on behalf of
the appellant, the learned Senior counsel appearing on behalf of
the private respondents as well as learned Additional Advocate
General appearing on behalf of the State of Uttar Pradesh.
10. There cannot be any quarrel with the submission advanced by
Mr. R. Basant, the learned Senior Counsel appearing for one of the
private respondents that the Court while granting bail is not
required to give detailed reasons touching the merits or de-merits
of the prosecution case as any such observation made by the Court
in a bail matter can unwittingly cause prejudice to the prosecution
or the accused at a later stage. The settled proposition of law, in
our considered opinion, is that the order granting bail should
reflect the judicial application of mind taking into consideration
the well-known parameters including:-
(i) The nature of the accusation weighing in the
gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e.
whether the accused can exercise influence on the
victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to
approach the victims/witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
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(vii) Obstructing or attempting to obstruct the due
course of justice;
(viii)Possibility of repetition of offence if left out on
bail;
(ix) The prima facie satisfaction of the court in
support of the charge including frivolity of the
charge;
(x) The different and distinct facts of each case and
nature of substantive and corroborative evidence.
We hasten to add that there can be several other relevant factors
which, depending upon the peculiar facts and circumstances of a
case, would be required to be kept in mind while granting or
refusing bail to an accused. It may be difficult to illustrate all
such circumstances, for there cannot be any straight jacket formula
for exercising the discretionary jurisdiction vested in a Court
under Sections 438 and 439 respectively of the CrPC, as the case
may be.
11. We are of the view that in the case in hand, several important
factors ought to have been kept in mind by the learned High Court
while considering the prayer of the respondents for their
enlargement on regular bail. The murder of Ashfaque Ahmad took
place in broad day light. The occurrence has been witnessed by the
appellant and two more eye witnesses. Two of the accused were
nabbed at the spot. It was apparently a case of contract killing.
There is material to indicate the motive behind the commission of
gruesome murder of Ashfaque Ahmad. Both the respondents have
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chequered criminal record and it is difficult to accept their
sweeping statement that all the cases registered against them are
politically motivated. Suffice to take notice at this stage that
earlier both the respondents have been found guilty in a case under
Section 302 IPC and while on bail, they have been prima facie found
involved in the instant case. If that is true, it is a clear case
of misuse of the concession of bail granted to them in the earlier
case. We find it difficult as to why the reasons assigned by the
High Court a few days before its order dated 03.09.2021, passed in
the case of Satish Kumar @ Satai, were found distinguishable in the
case of the private respondents except that Satish Kumar @ Satai
was physically involved in the commission of murder and was
allegedly one of the accused who fired at the deceased.
12. The other important factor is that Razi Ahmad @ Manu is one of
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
the interest of criminal justice system that the prayer for bail is
considered after ensuring that the statements of the vital
witnesses stand recorded and there is no likelihood of influencing
or tampering their evidence.
13. The appellant has also placed on record the copies of orders
passed by the Trial Court on various dates after the release of
private respondents on bail by the High Court. The order dated
15.03.2022 suggests that the respondent – Subhash Yadav was absent
from trial and non-bailable warrants were issued against him. There
are series of subsequent orders to indicate that both the
respondents have been seeking exemption from personal appearance
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and thus the trial has been completely stalled. Learned Additional
Advocate General informs that till date, only one witness has been
examined. It is the solemn duty of the Court to ensure that while
extending the protection of liberty to an accused within the
meaning of Article 21 of the Constitution, the interest of the
prosecution is equally protected and the concession of bail should
not be allowed to be misused to the prejudice of the prosecution of
the victim.
14. Mr. Basant, the learned Senior counsel appearing for one of
the accused vehemently submitted that very cogent and overwhelming
circumstances are necessary for cancellation of bail. Bail once
granted should only be cancelled if it comes to the notice of the
Court that the accused has misused the liberty granted to him by
the Court. According to Mr. Basant, there are no supervening
circumstances warranting cancellation of bail granted by the High
Court.
15. We are not at all impressed by the aforesaid submission of Mr.
Basant as it is well settled position of law that cancellation of
bail is not limited to the occurrence of any supervening
circumstances. In Ash Mohammad vs. Shivraj Singh @ Lalla Babu and
Another, reported in (2012) 9 SCC 446, this Court has observed that
there is no defined universal rule that applies in every single
case. Hence, it is not the law that once bail is granted to the
accused, it can only be cancelled on the ground of likelihood of an
abuse of bail. The Court before whom the order of grant of bail is
challenged is empowered to critically analyse the soundness of the
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bail order. The Court must be wary of a plea for cancellation of
bail order vs. a plea challenging the order for grant of bail.
Although on the face of it, both situations seem to be the same
yet, the grounds of contention for both are completely different.
Let’s understand the different conditions in both the situations.
16. In an application for cancellation of bail, the court
ordinarily looks for supervening circumstances as discussed above.
Whereas in an application challenging the order for grant of bail,
the ground of contention is with the very order of the Court. The
illegality of due process is questioned on account of improper or
arbitrary exercise of discretion by the court while granting bail.
So, the crux of the matter is that once bail is granted, the person
aggrieved with such order can approach the competent court to quash
the decision of grant of bail if there is any illegality in the
order, or can apply for cancellation of bail if there is no
illegality 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, this Court has observed, “The concept of setting aside as
unjustified, illegal or perverse order is totally different from
the cancelling an order of bail on the ground that the accused had
misconducted himself, are because of some supervening circumstances
warranting such cancellation”
17. The above principle has been reiterated in the case
of Venkatesan Balsubramaniyan vs. The Intelligence Officer, DRI
Bangalore (Cr. Appeal No. 801 of 2020), reported in (2020) 13 Scale
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191 wherein this Court observed that a default bail illegally or
erroneously granted under Section 167(2) CrPC can be cancelled
under Section 439(2) CrPC.
18. Taking into consideration all these facts and circumstances
but without expressing any views on the merits of the ongoing
trial, we are satisfied that the High Court did not take into
consideration the relevant material while granting bail to the
private respondents. It may be true that an accused cannot be
permitted to be languished in jail indefinitely but the Courts
while considering the bail application need to wait for the
appropriate stage where such a relief can be granted without any
adverse impact on the prosecution case. That stage is yet to reach
in the present trial as some of the crucial eye witnesses are yet
to depose.
19. For the reasons aforestated, the appeals are allowed, the
impugned orders dated 23.09.2021, passed by the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Bail Application
No. 624 of 2019 and Bail Application No. 4309 of 2019, granting
regular bail to the private respondents, are hereby set aside and
both the respondents are directed to surrender before the Trial
Court forthwith, failing which coercive action shall be taken
against them.
20. However, the respondents shall be at liberty to apply for bail
after examination of all the eye witnesses or other material
witnesses. Any such application shall be considered as per its own
merit without being influenced by the observations made
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hereinabove.
21. The Trial Court is directed to decide the case expeditiously
and make an endeavour to conclude the trial within one year.
22. As a sequel thereto, pending interlocutory applications also
stand disposed of.
.........................J.
(SURYA KANT)
..............…….........J.
(J.B. PARDIWALA)
NEW DELHI;
APRIL 18, 2023.
11
Revised
ITEM NO.11 COURT NO.9 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).8487/2021
(Arising out of impugned final judgment and order dated 23-09-2021
in BN No.624/2019 passed by the High Court of Judicature at
Allahabad, Lucknow Bench, Lucknow)
ANSAR AHMAD Petitioner(s)
VERSUS
STATE OF UTTAR PRADESH & ANR. Respondent(s)
IA No.134253/2022 - APPROPRIATE ORDERS/DIRECTIONS
IA No.57851/2022 - EXEMPTION FROM FILING AFFIDAVIT
IA No.134255/2022 - EXEMPTION FROM FILING AFFIDAVIT
IA No.143077/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No.143079/2021 - EXEMPTION FROM FILING O.T.
IA No.57867/2022 - EXEMPTION FROM FILING O.T.
WITH
SLP(Crl) No. 8540/2021 (II)
(FOR APPROPRIATE ORDERS/DIRECTIONS ON IA 134240/2022
FOR EXEMPTION FROM FILING AFFIDAVIT ON IA 134242/2022
IA No. 134240/2022 - APPROPRIATE ORDERS/DIRECTIONS
IA No. 134242/2022 - EXEMPTION FROM FILING AFFIDAVIT)
Date : 18-04-2023 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE J.B. PARDIWALA
For Petitioner(s) Mr. Siddharth Dave, Sr. Adv.
Mr. Talha Abdul Rahman, AOR
Ms. Vidhi Thaker, Adv.
Mr. M Shaz Khan, Adv.
Ms. Gayatri Dahiya, Adv.
For Respondent(s) Mr. Sharan Thakur, A.A.G.
Mr. Rohit K. Singh, AOR
Mr. Siddharth Thakur, Adv.
Mr. Mustafa Sajad, Adv.
Mr. Basant R, Sr. Adv.
Mr. Divyesh Pratap Singh, AOR
Mr. Vikram Pratap Singh, Adv.
Mr. Kavinesh Rm, Adv.
Ms. Shivangi Singh, Adv.
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Ms. Ishita Bedi, Adv.
Ms. Ranjana Singh, Adv.
Mr. Ajay Prabu, Adv.
Ms. Shivani Singh, Adv.
Mr. S. R. Setia, AOR
Mr. K B Upadhyay, Adv.
Mr. C P Pandey, Adv.
Mr. S N Tripathi, Adv.
Ms. Pinki Tiwari, Adv.
Mr. Shailesh Tiwari, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1. Leave granted.
2. For the reasons stated in the signed order, the appeals
are allowed, the impugned orders dated 23.09.2021, passed by the
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Bail Application No. 624 of 2019 and Bail Application No. 4309 of
2019, granting regular bail to the private respondents, are hereby
set aside and both the respondents are directed to surrender before
the Trial Court forthwith, failing which coercive action shall be
taken against them.
3. However, the respondents shall be at liberty to apply for
bail after examination of all the eye witnesses or other material
witnesses. Any such application shall be considered as per its own
merit without being influenced by the observations made
hereinabove.
4. The Trial Court is directed to decide the case
expeditiously and make an endeavour to conclude the trial within
one year.
5. As a sequel thereto, pending interlocutory applications
also stand disposed of.
(SATISH KUMAR YADAV) (PREETHI T.C.)
DEPUTY REGISTRAR COURT MASTER (NSH)
(Signed reportable order is placed on the file)
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ITEM NO.11 COURT NO.9 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).8487/2021
(Arising out of impugned final judgment and order dated 23-09-2021
in BN No.624/2019 passed by the High Court of Judicature at
Allahabad, Lucknow Bench, Lucknow)
ANSAR AHMAD Petitioner(s)
VERSUS
STATE OF UTTAR PRADESH & ANR. Respondent(s)
IA No.134253/2022 - APPROPRIATE ORDERS/DIRECTIONS
IA No.57851/2022 - EXEMPTION FROM FILING AFFIDAVIT
IA No.134255/2022 - EXEMPTION FROM FILING AFFIDAVIT
IA No.143077/2021 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No.143079/2021 - EXEMPTION FROM FILING O.T.
IA No.57867/2022 - EXEMPTION FROM FILING O.T.
WITH
SLP(Crl) No. 8540/2021 (II)
(FOR APPROPRIATE ORDERS/DIRECTIONS ON IA 134240/2022
FOR EXEMPTION FROM FILING AFFIDAVIT ON IA 134242/2022
IA No. 134240/2022 - APPROPRIATE ORDERS/DIRECTIONS
IA No. 134242/2022 - EXEMPTION FROM FILING AFFIDAVIT)
Date : 18-04-2023 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE J.B. PARDIWALA
For Petitioner(s) Mr. Siddharth Dave, Sr. Adv.
Mr. Talha Abdul Rahman, AOR
Ms. Vidhi Thaker, Adv.
Mr. M Shaz Khan, Adv.
Ms. Gayatri Dahiya, Adv.
For Respondent(s) Mr. Sharan Thakur, A.A.G.
Mr. Rohit K. Singh, AOR
Mr. Siddharth Thakur, Adv.
Mr. Mustafa Sajad, Adv.
Mr. Basant R, Sr. Adv.
Mr. Divyesh Pratap Singh, AOR
Mr. Vikram Pratap Singh, Adv.
Mr. Kavinesh Rm, Adv.
Ms. Shivangi Singh, Adv.
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Ms. Ishita Bedi, Adv.
Ms. Ranjana Singh, Adv.
Mr. Ajay Prabu, Adv.
Ms. Shivani Singh, Adv.
Mr. S. R. Setia, AOR
Mr. K B Upadhyay, Adv.
Mr. C P Pandey, Adv.
Mr. S N Tripathi, Adv.
Ms. Pinki Tiwari, Adv.
Mr. Shailesh Tiwari, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1. Leave granted.
2. For the reasons stated in the signed order, the appeals
are allowed, the impugned orders dated 23.09.2001, passed by the
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Bail Application No. 624 of 2019 and Bail Application No. 4309 of
2019, granting regular bail to the private respondents, are hereby
set aside and both the respondents are directed to surrender before
the Trial Court forthwith, failing which coercive action shall be
taken against them.
3. However, the respondents shall be at liberty to apply for
bail after examination of all the eye witnesses or other material
witnesses. Any such application shall be considered as per its own
merit without being influenced by the observations made
hereinabove.
4. The Trial Court is directed to decide the case
expeditiously and make an endeavour to conclude the trial within
one year.
5. As a sequel thereto, pending interlocutory applications
also stand disposed of.
(SATISH KUMAR YADAV) (PREETHI T.C.)
DEPUTY REGISTRAR COURT MASTER (NSH)
(Signed reportable order is placed on the file)
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