IMRAN VS Mr. MOHAMMED BHAVA & ANR

IMRAN VS Mr. MOHAMMED BHAVA & ANR


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.658 OF 2022
(arising out of S.L.P (CRL.) No. 27 OF 2022)
IMRAN … APPELLANT (S)
VERSUS
Mr. MOHAMMED BHAVA & ANR … RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 659 OF 2022
(arising out of S.L.P (CRL.) No. 1242 OF 2022)
IMRAN … APPELLANT (S)
VERSUS
Mr. MOHAMMED MUSTHAFA & ANR … RESPONDENT(S)
JUDGMENT
KRISHNA MURARI, J.
Leave granted
1
2. These two appeals are directed against the judgments and orders dated
08.02.2021 and 19.10.2020 passed by the High Court of Karnataka at Bengaluru
in Criminal Petition No. 6052/2020 and Criminal Petition No. 3902/2020
respectively. Respondent No. 1 herein, in the two petitions, namely Mohammed
Bhava & Mohammed Musthafa, have been arrayed as Accused No. 6 and
Accused No. 8 in FIR No. 38/2020 dated 05.06.2020. 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’), read with section 149 of IPC. The High Court vide orders
impugned herein has allowed the anticipatory bail application and bail
application respectively, of the two Respondents.
Factual Matrix
3. The Appellant herein (original complainant) is the son of Abdul Lathif
(deceased). On 05.06.20, initially, an FIR was registered under sections 143,
147, 148, 341, 307, 302, 395 IPC, read with section 149 of IPC. Post
investigation, sections 114, 109 and 120B of IPC were also added in the charge
sheet. The said FIR listed ten individuals as being accused for committing
offences under the above said sections.
2
4. It is the case of the prosecution that Accused No. 1 - Davood Hakim,
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 this common objective,
Accused No. 2 to 10, came on a bike and car, attacked C.W.s 1(the Appellant), 2
(Badrul Muneer) and 3 (Hiyaz), with soda bottle 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 the deceased – 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 Appellant along with
other two C.Ws and deceased, was returning from HDFC Bank, Mulki Branch,
when Accused No. 2 to 10 intercepted the car of C.W.2, Badrul Muneer. While
Accused No. 2 and 3, started abusing Badrul 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, and assaulted Badrul Muneer with a soda
bottle and concrete stone respectively.
6. Upon seeing his son-in-law Badrul Muneer being brutally assaulted, the
deceased- Abdul Lathif intervened. However, as the deceased intervened,
Accused No. 6, Mohammed Bhava (Respondent No. 1 herein, in S.L.P (CRL.)
3
No. 27 of 2022) pushed him. The said Accused No. 6 further stated that ‘this
was not the only thing and that he would have more’. Resultantly, all other
accused (including Musthafa, Accused No. 8 i.e., Respondent No. 1, in S.L.P
(CRL.) No. 1242 of 2022) 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 which was rejected by
the sessions court. Eventually investigation was also completed and a charge
sheet was filed against all accused on the basis of witness statements, recovered
articles, medical opinion, and FSL report.
8. Thereafter, Accused No. 6 (Respondent No. 1 herein, in S.L.P (CRL.)
No. 27 of 2022) filed an anticipatory bail application before the sessions court,
which was also rejected vide judgment dated 14.10.2020.
9. Aggrieved, both the Accused No. 6 and 8, preferred applications before
the High Court which were allowed vide impugned judgments and orders dated
08.02.2021 and 19.10.2020, in Criminal Petition No. 6052/2020 and Criminal
Petition No. 3902/2020 respectively.
4
10. Vide impugned judgments, the High Court observed that since other coaccused were also granted bail therefore relief sought by the Accused
Respondents No. 1 herein, in the two petitions could be granted.
11. However, subsequently, the High Court vide its judgment and order
dated 26.08.21 cancelled bails granted to all other accused present at the scene
of offence i.e. Accused No. 2,3,4,7,9 &10. This cancellation order 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 the prime accused i.e., Accused No. 1,
by the High Court was also challenged before this court. This court vide final
order dated 11.01.2022 allowed the appeal, and set aside the order of the High
Court granting bail to Accused No. 1.
Contentions made by the Appellant
12. The aggrieved complainant herein, inter-alia, contends that the High
Court vide impugned orders has erred in not considering the gravity 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 record available against both the
Respondents herein, i.e. Accused No. 6 and 8. Both the accused had instigated
5
and participated in the commission of a heinous crime and therefore were not
entitled to any discretionary relief at all.
13. It is further contended that the impugned orders suffer from nonapplication of mind to the extent that the court below failed to consider the
gravity and nature of offence, committed by both the accused Respondents
herein. The High Court thus erred in not considering that granting bail to both
the accused, who are involved in a premeditated murder case, would pose
significant threat to all prosecution witnesses.
14. The Appellant further emphasizes upon the judgment of this Court in
Ram Govind Upadhyay Vs. Sudarshan Singh and Others1
 wherein it has been
observed that grant of bail though discretionary, calls 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 and
not as a matter of course. Order for Bail bereft of any cogent
reason cannot be sustained. Needless to record, however, that
the grant of bail is dependent upon the contextual facts of the
1. (2002) 3 SCC 598
6
matter being dealt with by the Court and facts however do
always vary from case to case. While placement of the accused
in the society, though may be considered but that by itself
cannot be a guiding factor in the matter of grant of bail and the
same should and ought always be coupled with other
circumstances warranting the grant of bail. The nature of the
offence is one of the basic consideration for the grant of bail
more heinous is a crime, the greater 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 cancelled by the High
Court and this Court, have not surrendered as yet. On the contrary, 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 in S.L.P (Crl.) No.
27 of 2022
16. Accused No.6 contends that the Appellant is well aware that the said
accused actually had no role in the offence, and that he was named in the FIR
7
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 Arnab Manoranjan
Goswami Vs. State of Maharashtra & Ors.2
, has reiterated that the basic rule
behind bail jurisprudence is to grant bail and not jail. That there is no material
on record to suggest that the present accused participated in the commission of
the alleged offence. Even the allegation of instigation is hollow and cannot be
proved.
Contentions made by Accused No 8: Respondent No. 1 in S.L.P (Crl.) No.
1242 of 2022
18. Accused No.8 contends that his name was only added to the FIR by way
of a subsequent statement made by the appellant under section 161 Cr.P.C. and
that the appellant herein, has merely become tool at the hands of CW-2 i.e.
Badrul Muneer and his family.
2. (2021) 2 SCC 427
8
19. It is further contended that the Appellant has made omnibus and
sweeping allegations against the answering respondent in the present SLP which
are contrary to the material on record.
20. The accused Respondent has further referred to various judgments of
this court to emphasize that very cogent and overwhelming circumstances are
necessary for an order directing cancellation of bail. It is also stated that bail
once granted cannot be cancelled in a mechanical manner without considering
whether any supervening circumstances have rendered it inconducive to allow
fair trial.
(See Daulat Ram and Others v. State of Haryana (1995) 1 SCC 349, State
(Delhi Admn) v. Sanjay Gandhi (1978) 2 SCC 411, Kashmira Singh v. Duman
Singh (1996) 4 SCC 693, CBI v. Subramani Gopalkrishnan (2011) 5 SCC
296, X v. State of Telangana (2020) 16 SCC 511)
Analysis
21. Having perused the relevant facts and contentions made by the
Appellant and the Respondents herein, in our considered opinion, the key issue
which requires determination in the instant case is whether the High Court has
exercised its discretion in a mechanical manner i.e., whether the impugned
orders of the High Court have over-looked established principles, while
exercising discretion to enlarge both the accused on bail.
9
22. Before we undertake an analysis of the nature of material available
against the accused Respondents, it is pertinent to address the contention raised
by Accused No. 8 emphasizing that cogent and overwhelming circumstances are
necessary for an order directing cancellation of bail. Further, cancellation of bail
is contingent upon supervening circumstances which might render it difficult to
hold a fair trial.
23. Indeed, it is a well-established principle that once bail has been granted
it would require overwhelming circumstances for its cancellation. However, this
Court in its judgment in Vipan Kumar Dhir Vs. State of Punjab and Anr.3
has
also reiterated, that while conventionally, certain supervening circumstances
impeding fair trial must develop after granting bail to an accused, for its
cancellation by a superior court, bail, can also be revoked by a superior court,
when the previous court 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 supervening circumstances
which may develop post the grant of bail and are non conducive to
fair trial, making it necessary to cancel the bail. This Court in
Daulat Ram and Others Vs. State of Haryana observed that:
“Rejection of bail in a non-bailable case at the initial stage
and the cancellation of bail so granted, have to be
considered and dealt with on different basis. Very cogent
3. 2021 SCC OnLine SC 854
10
and overwhelming circumstances are necessary for an
order directing the cancellation of the bail, already
granted. Generally speaking, the grounds for cancellation
of bail, broadly (illustrative and not exhaustive) are:
interference or attempt to interfere with the due course of
administration of Justice or evasion or attempt to evade the
due course of justice or abuse of the concession granted to
the accused in any manner. The satisfaction of the court, on
the basis of material placed on the record of the possibility
of the accused absconding is yet another reason justifying
the cancellation of bail. However, bail once granted should
not be cancelled in a mechanical manner without
considering whether any supervening circumstances have
rendered it no longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying 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 cited
decision(s), bail can also be revoked where the court has
considered irrelevant factors or has ignored relevant
material available on record which renders the order
granting bail legally untenable. The gravity of the offence,
conduct of the accused and societal impact of an undue
indulgence by Court when the investigation is at the
threshold, are also amongst a few situations, where a
Superior Court can interfere in an order of bail to prevent
the miscarriage of justice and to bolster the administration
of criminal justice system…”
24. Earlier also this Court, in case of Ram Govind Upadhyay Vs. Sudarshan
Singh and Others4
 has observed:
“9. …..Undoubtedly, considerations applicable to the grant
of bail and considerations for cancellation of such an order of
4. (2002) 3 SCC 598
11
bail are independent and do not overlap each other, but in the
event of non- consideration of considerations relevant for the
purpose of grant of bail and in the event an earlier order of
rejection available on the records, it is a duty incumbent on to
the High Court to explicitly state the reasons as to why the
sudden departure in the order of grant as against the rejection
just about a month ago….”
25. Similarly, in the case of Prasanta Kumar Sarkar Vs. Ashis Chatterjee
and Anr.5
, it has been observed:
“9. We are of the opinion that the impugned order is clearly
unsustainable. It is trite that this Court does not, normally,
interfere with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are: (i) whether there is
any prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) nature and gravity of
the accusation; (iii) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or fleeing,
if released on bail; (v) character, behaviour, means, position
and standing of the accused; (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 grant of bail.
10. It is manifest that if the High Court does not advert to
these relevant considerations and mechanically grants bail,
the said order would suffer from the vice of non-application
of mind, rendering it to be illegal. In Masroor (supra), a
Division Bench of this Court, of which one of us (D.K. Jain,
5. (2010) 14 SCC 496
12
J.) was a member, observed as follows: "Though at the stage
of granting bail an elaborate examination of evidence and
detailed reasons touching the merit of the case, which may
prejudice the accused, should be avoided, but there is a need
to indicate in such order reasons for prima facie concluding
why bail was being granted particularly where the accused is
charged of having committed a serious offence." (2005) 8
SCC 21 (2001) 4 SCC 280 (2002) 3 SCC 598 (See also: State
of 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 granted by a lower
court, would indeed require significant scrutiny at the instance of superior court,
however, bail when granted can always be revoked if the relevant material on
record, gravity of the offence or its societal impact have not been considered by
the lower court. In such instances, where bail is granted in a mechanical manner,
the order granting bail is liable to be set aside. Moreover, the decisions cited
herein above, enumerate certain basic principles which must be borne in mind
when deciding upon an application for grant of bail. Thus, while each case has
its own unique factual matrix, which assumes a significant role in determination
of bail matters, grant of bail must also be exercised by having regard to the
above-mentioned well-settled principles.
27. Coming to the instant factual matrix, having gone through the impugned
orders passed by the High Court granting bail to Accused No. 6 and Accused
13
No. 8, the two accused Respondents herein, we find the High Court has mainly
released them on the ground that there were no prima-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 material available on
record, particularly the statements of all the eye-witnesses, clearly indicates that
Accused No. 2 to 10 on the basis of a conspiracy hatched by Accused No. 1, had
assaulted CW-2 (Badrul Munner), and CW-3 (Hiyaz). Subsequently, upon
seeing the Badrul Munner and Hiyaz, being brutally assaulted by the said
Accused No. 2 to 10, as the deceased Abdul Lathif intervened, he was chased
down by all the said accused, and murdered.
29. Here it becomes pertinent to mention that the statement of more than
fifteen witnesses suggests that all the accused had assaulted the said injured
witnesses and deceased, Abdul Lathif pursuant to a common object.
Furthermore, medical opinion and Forensic Science Laboratory (FSL) report
also corroborate the weapons used by the accused, as mentioned by the
witnesses in their statements.
30. As far as attribution of specific acts against the accused Respondents is
concerned, it becomes amply clear from the statement of all the witnesses that
14
Accused No. 6 and 8 have indeed participated in assaulting the deceased.
Furthermore, as the accused group continued its assault, Accused No. 6,
instigated them by saying that this wasn’t enough. Thereafter, as perused from
the statement of the complainant/appellant herein, Accused No. 8 who came on
a motorcycle had also brutally beaten the deceased with a wooden stick. In
addition to these statements, there is enough evidence to indicate that a heinous
offence was committed in furtherance of a common objective, and therefore the
accused Respondents should not have been enlarged on bail.
31. The High Court while granting bail to the accused Respondents, thus
failed to consider the nature of accusations and relevant evidentiary material
against them.
32. This court in the case of Neeru Yadav Vs. State of U.P. & Anr.,6
 has also
reiterated that:
“11. It is the duty of the Court to take into consideration
certain factors and they basically are, (i) the nature of
accusation and the severity of punishment in cases of
conviction and the nature of supporting evidence, (ii)
reasonable apprehension of tampering with the witnesses
for apprehension of threat to the complainant, and (iii)
Prima facie satisfaction of the court in support of the
charge.”
6. (2016) 15 SCC 422
15
33. Applying the ratio of the decisions of this court referred to above 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 grant of bail, well established by
various judicial pronouncements. The High Court lost sight of the fact that there
exists sufficient material against the accused Respondents herein, so as to
establish a prima facie case against them.
34. Another important fact to be taken note of is that initially, bail granted to
Accused No. 2,3,4,7,9 & 10 by the High Court was cancelled by the High Court
itself. The said order has been confirmed by this Court 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 this Court vide order dated 11.02.2022 in
Criminal Appeal No. 79/2022.
35. In view of the above facts and for the reasons stated herein above,
impugned orders dated 08.02.2021 and 19.10.2020 passed by the High Court of
Karnataka at Bengaluru in Criminal Petition No. 6052/2020 and Criminal
Petition No. 3902/2020, releasing the Accused No. 6 and 8 on bail, are set aside.
Respondents-accused are directed to surrender before the trial court within a
period of two weeks from today failing which they shall be taken into police
custody for the said purpose.
16
36. The observations made herein are limited to present proceedings and
would not be construed as expression of any opinion by us, on the merit of the
case.
37. As a result, the appeals stand allowed on the aforesaid terms.
....…............................CJI.
(N.V. RAMANA)
..…..................................J.
(KRISHNA MURARI)
.…..................................J.
(HIMA KOHLI)
NEW DELHI;
APRIL 22, 2022
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