Imran vs Mohammed Bhava

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.

Signature Not Verified Digitally signed by VISHAL ANAND

Leave granted Date: 2022.04.22 16:31:24 IST Reason: 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 co-

accused 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 non-

application 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 Others 1 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

17