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Synopsis

The Supreme Court has set aside bail granted to four persons in a twin murder case, saying the High Court completely lost sight of principles that conventionally govern a court’s discretion at the time of deciding whether bail ought to be granted or not. 

A bench of Justices Hima Kohli and Ahsanuddin Amanullah in a recent judgement allowed the appeal filed against the Allahabad High Court's orders ordering release of accused Waseem, Nazim, Aslam and Abubakar on a plea by complainant Ajwar whose two sons Abdul Khaliq and Abdul Majid were killed in indiscriminate firing on the evening May 19, 2020 during the period of Ramazan.

"It is equally well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order," the bench said.

The bench also pointed out the considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. 

"We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to the merits of the case that may cause prejudice to the accused, ought to be avoided. Suffice it is to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused," the bench said.

The court said it was inclined to agree with submission by counsel for the appellant-complainant that the HC orders are unjustified and suffer from grave infirmity. 

The court noted this is third round litigation with regard to the bail to the accused. The first order on December 7, 2022 enlarging the accused Waseem on bail, was passed on merits. The subsequent three orders of February 13, 2023, March 2, 2023 and March 21, 2023, granting bail in favour of Nazim, Aslam and Abubakar respectively, are on grounds of parity.

The appellant contended all the four accused were specifically named in the FIR, besides the co-accused and specific role was attributed to them in the incident during the trial by the complainant and independent witnesses.

The respondents accused contended there was previous enmity and political rivalry between the parties, as the appellant had lost election of village Pradhan so they have been falsely implicated in the FIR. The appellant-complainant is involved in 10 criminal cases and his two deceased sons, Abdul Majid was involved in 21 criminal cases and Abdul Khaliq was involved in two cases, they said.

In the case, the court, however, said, the High Court was swayed by the fact that there was indiscriminate firing but only three persons sustained injuries and two died while the accused side also received injuries which was not explained by the prosecution, the court noted.

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, the bench further noted.

In the case, the bench said, 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.

"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. 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," the court said.

Furthermore and most importantly, the bench said, 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. All the accused-respondents have remained in custody for less than three years for such a serious offence of a double murder, the court noted.

The bench also found that in the cross-FIR filed by Smt Saeeda Begum, wife of Niyaz Ahmad and mother of Waseem at the instance of the accused persons, a closure was filed by the police. On September 4, 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 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 CrPC against the complainant in the cross-FIR which has been registered on January 15, 2024.

The court thus ordered all the four accused respondents to surrender within two weeks.