AMINUDDIN VERSUS STATE OF UTTAR PRADESH & ANR.

AMINUDDIN VERSUS STATE OF UTTAR PRADESH & ANR.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. …….. OF 2022
(ARISING OUT OF SLP (CRL.) NO. 5029 OF 2021)
AMINUDDIN ………APPELLANT(S)
 VERSUS
STATE OF UTTAR PRADESH & ANR. ………RESPONDENT(S)
JUDGMENT
DINESH MAHESHWARI, J.
Leave granted.
2. The appellant, at whose behest FIR No. 438 of 2019 dated
10.07.2019 came to be registered at Police Station Kasganj, District
Kasganj, Uttar Pradesh for offences under Sections 147, 148, 149, 302,
352 and 34 of the Indian Penal Code, 18601
, has preferred this appeal by
permission and by special leave, in challenge to the order dated
03.12.2020, as passed by the High Court of Judicature at Allahabad in
Criminal Misc. Bail Application No. 20894 of 2020.
2.1. By order impugned, the High Court has granted the concession of
bail to one of the accused persons (respondent No. 2 herein), essentially
1 ‘IPC’, for short.
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on the consideration that identically placed co-accused persons had
already been granted bail. The appellant has, inter alia, pointed out that
the order granting bail to one of the alleged identically placed co-accused
has been disapproved by this Court in the judgment and order dated
15.03.2021, as passed in Criminal Appeal No. 317 of 2021 arising out of
SLP(Crl.) No. 6744 of 2020.
3. Briefly put, the relevant background aspects of the matter are as
follows: The appellant had lodged the First Information Report on
10.07.2019 at about 09:08 p.m. with the allegations that his son Danish
was attacked with knife and sharp weapons by as many as 7 persons
when he was coming from his house for milking the cattle. It was further
alleged that the victim Danish sustained grievous injuries because of such
assault and died on the spot. Two persons, Nisar and Jalil, were said to
be the eye-witnesses to the incident. As many as 8 ante-mortem injuries
were detected on the person of the deceased, most of which had been
either incise wounds or stab wounds on and around the neck and the
chest. One of the accused persons, Imran, was arrested on 11.07.2019.
As per the assertion of the Investigating Officer, the other accused
persons, including the present respondent No. 2, remained absconding
wherefor, non-bailable warrants and then, even proclamation under
Section 82 of the Code of Criminal Procedure, 1973 were issued. The
other accused persons surrendered or were apprehended on different
dates. The respondent No. 2 surrendered on 02.09.2019.
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4. The application for bail moved on behalf of the respondent No. 2
was declined by the Sessions Court and then, the first bail application
moved on his behalf in the High Court, being Criminal Misc. Bail
Application No. 4842 of 2020 came to be dismissed on 10.02.2020 for
non-prosecution. Thereafter, the respondent No. 2 moved the second bail
application bearing No. 20894 of 2020 that has been considered and
allowed by the High Court by the impugned order dated 03.12.2020.
Before that, the bail application of one of the co-accused, Fahim, bearing
No. 6083 of 2020 was allowed by the High Court on 25.02.2020.
5. As regards the second bail application moved on behalf of the
respondent No. 2, the frontal submission had been that identically placed
persons had been granted bail and, therefore, he was also entitled to the
same relief on parity. This submission was considered by the High Court
and only for this reason that the co-accused had been granted bail, the
High Court proceeded to accept the application made on behalf of the
respondent No. 2 and ordered his release on bail with certain conditions.
The relevant aspects of the order impugned, carrying the submissions
made on behalf of the appellant, the opposition by the counsel for the
State and consideration of the High Court, could be usefully reproduced
as under: -
“Learned counsel for the applicant argued that applicant has
been falsely implicated in the present case. There are general
allegations against all the accused persons. It is next submitted
that co-accused, namely, Faim, Nasir and Qamruddin have been
granted bail by co-ordinate Benches of this Court in Criminal Misc.
3
Bail Application Nos. 6083 of 2020, 11840 of 2020 and 21839 of
2020 vide orders dated 25.2.2020, 17.6.2020 and 26.8.2020
respectively. Copy of the order granting bail to co-accused Faim
has been annexed at page no. 60 to the affidavit filed in support of
the bail application while copy of the orders granting bail to Nasir
and Qamruddin has been produced today in Court, which are
taken on record. It is argued that the case of the applicant stands
on identical footing as that of co-accused who have been granted
bail, hence, he may be granted bail on ground of parity. It has also
been pointed out that the applicant is not having any criminal
history as stated in para-21 of the affidavit and he is in jail since
2.9.2019 and there is no likelihood of early conclusion of trial and
hence, the applicant may be released on bail during pendency of
trial.
Per contra, learned brief holder for the State opposed the prayer
for bail but could not dispute the fact that the applicant has no
criminal antecedents.
After having heard the learned counsel for the parties and looking
to the fact that identically placed co-accused persons have been
granted bail by this Court, therefore, the applicant be released on
bail.”
6. In this matter, on 12.07.2021, this Court granted permission to the
present appellant to file the petition for leave to appeal and issued notices
to the respondents. Detailed counter affidavits have been filed on behalf
of the State as also on behalf of the respondent No. 2. While the State
has supported the contentions urged on behalf of the appellant, the
respondent No. 2 has opposed, while supporting the order impugned.
7. Learned counsel appearing on behalf of the appellant has argued
in the first place that the High Court granted bail to the respondent No. 2
only for the reason of the orders passed in favour of the co-accused
persons, including the order dated 25.02.2020 granting bail to the coaccused Fahim but then, the order so passed by the High Court in favour
of the co-accused was not approved by this Court and was set aside by
4
the judgment and order dated 15.03.2021 in Criminal Appeal No. 317 of
2021. In this view of the matter, according to the learned counsel, the very
basis of grant of bail to the respondent No. 2 having been knocked out,
the impugned order cannot sustain itself and deserves to be set aside.
7.1. Learned counsel for the appellant has further submitted that while
granting bail to the respondent No. 2, the High Court has totally omitted to
consider that the present case had been of a broad day-light murder of
the son of the appellant in brutal and gruesome manner where 7 persons
attacked him with sharp weapons and caused as many as 8 grievous
injuries on vital parts of the body. In such a matter, the learned counsel
has contended, the order granting bail even before commencement of the
trial suffers from gross illegality and impropriety and, therefore, deserves
to be set aside.
8. Learned counsel for the State has duly supported the submissions
made on behalf of the appellant and has submitted that the impugned
order deserves to be set aside.
9. Learned counsel for the respondent No. 2, on the other hand, has
countered the submissions made on behalf of the appellant and the State,
and has contended that the impugned order does not call for interference
merely because this Court has set aside the order granting bail to the coaccused Fahim.
5
9.1. Learned counsel for the respondent No. 2 has contended that in
the said order dated 15.03.2021, the major aspects had been that no
counter-affidavit was filed on behalf of the respondent-accused and then,
on the date of hearing, learned counsel appearing for the said co-accused
sought an adjournment, which was declined by the Court. Thus,
according to the learned counsel, the order dated 15.03.2021 does not
operate against the interests of respondent No. 2.
9.2. Learned counsel has further submitted that a strong case for grant
of bail in favour of the respondent No. 2 was made out, and therefore, the
High Court had rightly granted him bail. In support of these submissions,
learned counsel has relied upon the factors that the respondent No. 2 had
been in custody since 02.09.2019; that he had no negative antecedents
or adverse records; that no specific role has been assigned to him as
regards the incident in question; and that the story of the prosecution
appears to be palpably false for the scientific reason that 7 accused
persons could not have inflicted injuries on the body of the decease with 7
knives at the same time.
9.3. Learned counsel has further submitted that the statement of the
present appellant had already been completed in the trial and there had
not been any allegation of tempering with the witnesses. Thus, according
to the learned counsel, the impugned order granting bail to the
respondent No.2 does not call for interference.
6
10. In rejoinder submissions, learned counsel for the appellant has
submitted that the eye-witnesses, namely Nasir and Jalil, are yet to be
examined and looking to the nature of the accusations and the order
passed by this Court in relation to the co-accused person, the impugned
order deserves to be set aside.
11. Having given anxious consideration to the rival submissions and
having examined the record, we are clearly of the view that the impugned
order dated 03.12.2020 cannot be approved from any standpoint.
12. A perusal of the order impugned makes it clear that in essence,
the principal part of submissions before the High Court on behalf of the
present respondent No. 2, while seeking bail, had been that the coaccused persons had been granted bail and he was entitled to the same
relief on the ground of parity because his case was standing on identical
footing. The other submissions had been that the respondent No. 2 was
in custody since 02.09.2019; that he had no criminal history; and that trial
was likely to take time. The High Court did not consider any other aspect
of the matter at all and proceeded to grant bail to the respondent No. 2
only for the reason that the so-called identically placed co-accused
persons had already been granted bail. The fact that the order granting
bail to the co-accused Fahim met with its strong disapproval by this Court
remains rather indisputable.
7
13. In the judgment and order dated 15.03.2021, this Court took note
of the fact that the High Court had granted bail to the co-accused while
ignoring the relevant considerations and with a mere reference to the
mandate of Article 21 of the Constitution of India. The relevant
observations and comments by this Court in the judgment and order
dated 15.03.2021 could be usefully extracted as under: -
“7 The circumstances would indicate that a brutal murder has
been committed of the son of the appellant. The postmortem
report would indicate as many as eight ante mortem injuries. The
offence is alleged to have taken place in broad day light. The First
Information Report being Case Crime No 438 of 2019 was
registered at about 2108 hours, within a period of four hours of the
incident which is alleged to have taken place at 1715 hours on the
same day. After the investigation was completed, the charge-sheet
has been submitted before the competent court under Section 173
of the Code of Criminal Procedure 1973. In several judgments of
this Court, the need for the High Court to adduce reasons while
granting bail has been underscored. At this stage, we may advert
to the recent decision in Mahipal vs Rajesh Kumar2
 , which was
relied on by Ms Bansuri Swaraj, learned counsel for the State of
UP. Speaking for a two-Judge Bench, one of us (Justice D Y
Chandrachud, J) observed:
“25. Merely recording “having perused the record” and “on the
facts and circumstances of the case” does not subserve the
purpose of a reasoned judicial order. It is a fundamental
premise of open justice, to which our judicial system is
committed, that factors which have weighed in the mind of the
Judge in the rejection or the grant of bail are recorded in the
order passed. Open justice is premised on the notion that
justice should not only be done, but should manifestly and
undoubtedly be seen to be done. The duty of Judges to give
reasoned decisions lies at the heart of this commitment.
Questions of the grant of bail concern both liberty of individuals
undergoing criminal prosecution as well as the interests of the
criminal justice system in ensuring that those who commit
crimes are not afforded the opportunity to obstruct justice.
Judges are duty-bound to explain the basis on which they have
arrived at a conclusion.
27. Where an order refusing or granting bail does not furnish
the reasons that inform the decision, there is a presumption of
the non-application of mind which may require the intervention
of this Court.”
2 (2020) 2 SCC 118
8
8 In the present case, the High Court has merely observed that
bail was being granted after considering the submissions and
having regard to the “larger mandate of Article 21”. There can be
no manner of doubt that the protection of personal liberty under
Article 21 is a constitutional value which has to be respected by
the High Court, as indeed by all courts. Equally, in a matter such
as the present, where a serious offence of murder has taken
place, the liberty of the accused has to be necessarily balanced
with the public interest in the administration of criminal justice
system which requires that a person who is accused of a crime is
held to account. Having regard to the settled principles which
govern the grant of bail in a matter involving a serious offence in a
case such as the present, we are of the view that the order of the
High Court does not clearly pass muster. No case for the grant of
bail is made out. In granting bail, the High Court has failed to
notice relevant considerations which ought to have been, but have
not been taken into account.
9 In the above circumstances, we allow the appeal and set aside
the impugned judgment and order of the High Court dated 25
February 2020. As a consequence of this order, the second
respondent shall surrender forthwith.”
14. The position aforesaid equally applies to the present case too.
Moreover, when the bail granted to co-accused person has been
disapproved by this Court and such grant of bail to co-accused had been
the only reason for which the bail was granted to the respondent No. 2,
the impugned order is liable to be set aside.
15. The submissions on behalf of the respondent No. 2 that there was
no proper contest on behalf of the said co-accused in this Court could
hardly take away the substance of the dictum of this Court. It is clear that
in said case, the High Court had proceeded in a rather cursory manner
and without regard to the salient feature of the case at hand, being that of
gruesome day-light murder of the son of the appellant with 8 grievous
9
injuries, including those of incise wounds and stab wounds on and around
the neck and the chest.
16. As regards the case of respondent No. 2, we are constrained to
observe that even if the High Court proceeded to consider the fact that
the co-accused person had been granted bail, at least this much was
required that the relevant facts of the case were indicated as also the
reasons as to how the case of respondent No. 2 was treated to be
identical. The relied upon order had been suffering from failure on the part
of the High Court to notice the relevant considerations and the impugned
order equally suffers from the shortcoming that the relevant features of
the case have not at all been considered by the High Court.
17. The submissions that the respondent No. 2 had been in custody
since 02.09.2019 or that he had no negative antecedents, by themselves,
do not make out a case for grant of bail, looking to the seriousness of
crime in question. In this regard, the submissions of the Investigating
Officer cannot go unnoticed that while the incident took place on
10.07.2019 and one of the accused persons was arrested on 11.07.2019,
the other accused persons remained absconding and the respondent No.
2 surrendered as late as on 02.09.2019. So far the questions relating to
the role assigned to the respondent No. 2 or about the doubt on the
prosecution case, suffice it to observe at the present stage that the
respondent No. 2 has specifically been named in the FIR as one of the
assailants; and looking to the nature of the accusations and the nature of
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injuries, the prosecution case, prima facie, cannot dubbed as fanciful or
improbable.
18. For what has been noticed hereinabove, the impugned order is
required to be set aside.
19. We have pondered over the question as to the order that needs to
be passed in this matter finally. It is noticed that in the judgment and order
dated 15.03.2021, this Court disapproved the order dated 15.02.2020
granting bail to the co-accused and directed him to surrender forthwith.
More or less the same position would apply to the present case too.
Herein, the order granting bail was passed on 03.12.2020 and the present
matter was initially taken up for consideration on 12.07.2021. Even if one
witness, that is, the present appellant, has already been examined, the
other witnesses, including the eye-witnesses, are to be examined in the
trial. In the given circumstances and in the interest of justice, we also
deem it proper to leave it open for the respondent No. 2 to apply for bail
afresh after surrendering and at an appropriate stage.
20. Accordingly and in view of above, this appeal is allowed; the
impugned order dated 03.12.2020 is set aside with the requirement that
the respondent No. 2 shall surrender forthwith. In the interest of justice, it
is provided that if the respondent No. 2 applies for bail afresh after
surrendering and at an appropriate stage, such an application may be
considered on its own merits.
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21. In the interest of justice, it is also made clear that we have not
pronounced on the merits of the case either way and none of the
observations herein, by itself, would operate prejudicial to the interests of
the parties nor shall have any bearing on the final verdict by the Trial
Court.
22. All pending applications also stand disposed of.
 ….………………………..J.
[DINESH MAHESHWARI]
….………………………..J.
 [KRISHNA MURARI]
NEW DELHI;
SEPTEMBER 23, 2022.
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