AMINUDDINversusSTATE OF UTTAR PRADESH & ANR.

                        [2022] 19 S.C.R. 271                             271


                           AMINUDDIN                                     A
                                  v.
              STATE OF UTTAR PRADESH & ANR.
                 (Criminal Appeal No. 1669 of 2022)
                       SEPTEMBER 23, 2022                                B
  [DINESH MAHESHWARI AND KRISHNA MURARI, JJ.]
       Bail – Grant of, on parity – When not justified – Penal Code,
1860 – ss.147, 148, 149, 302, 352 and 34 – Held: When the bail
granted to co-accused person has been disapproved by Supreme
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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– In the 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 injuries,       D
including those of incise wounds and stab wounds on and around
the neck and the chest – Impugned order equally suffers from the
shortcoming that the relevant features of the case have not at all
been considered by the High Court – Respondent no.2 has been
specifically named in the FIR as one of the assailants and looking
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to the nature of the accusations and the nature of injuries, the
prosecution case prima facie cannot be dubbed as fanciful or
improbable – Impugned order set aside – Respondent no.2 to
surrender – If he applies for bail afresh after surrendering and at
an appropriate stage, such an application may be considered on its
own merits.                                                              F
      Mahipal vs Rajesh Kumar (2020) 2 SCC 118 : [2019]
      14 SCR 529 – referred to.
                       Case Law Reference
[2019] 14 SCR 529                referred to               Para 13       G
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1669 of 2022.
       From the Judgment and Order dated 03.12.2020 of the High Court
of Judicature at Allahabad in Criminal Misc. Bail Application No.20894
of 2020.                                                                 H
                                  271
272                 SUPREME COURT REPORTS                     [2022] 19 S.C.R.


A           Anilendra Pandey, Wahid Hussain, Nadeem Hussain, Sandeep,
      Advs. for the Appellant.
           Shashank Shekhar Singh, Bahar U. Barqi, Aftab Ali Khan, D. S.
      Mishra, Advs. for the Respondents.
                The Judgment of the Court was delivered by
B
                DINESH MAHESHWARI, J.
                   Leave granted.
            2. The appellant, at whose behest FIR No. 438 of 2019 dated
C     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, 1860 1, 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.
D
             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 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-
E
      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
F     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
G     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.

      1
H         ‘IPC’, for short.
     AMINUDDIN v. STATE OF UTTAR PRADESH & ANR.                              273
              [DINESH MAHESHWARI, J.]

As per the assertion of the Investigating Officer, the other accused         A
persons, including the present respondent No. 2, remained absconding
where for, 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           C
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      D
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.    E
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       F
      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.
      Bail Application Nos. 6083 of 2020, 11840 of 2020 and 21839 of         G
      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
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274            SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A           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,
B
            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.
C           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
D     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
E     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
F     bail to the co-accused 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 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
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      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
H
     AMINUDDIN v. STATE OF UTTAR PRADESH & ANR.                              275
              [DINESH MAHESHWARI, J.]

7 persons attacked him with sharp weapons and caused as many                 A
as8grievous 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                 B
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
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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 co-accused Fahim.
       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     D
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.
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       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      F
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.
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       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.
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276            SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A           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.
B           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,
C     the principal part of submissions before the High Court on behalf of the
      present respondent No. 2, while seeking bail, had been that the co-accused
      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
D     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
E
      rather indisputable.
            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
F     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 asunder: -
            “7 The circumstances would indicate that a brutal murder has
            been committed of the son of the appellant. The postmortem report
G           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-
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        AMINUDDIN v. STATE OF UTTAR PRADESH & ANR.                               277
                 [DINESH MAHESHWARI, J.]

         sheet has been submitted before the competent court under Section       A
         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
                                                                                 B
         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        C
            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              D
            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         E
            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       F
            of this Court.”
         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   G
         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

2
    (2020) 2 SCC 118                                                             H
278            SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A           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
B           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.

C           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.
D     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
E     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
F     8grievous 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
G     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.
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     AMINUDDIN v. STATE OF UTTAR PRADESH & ANR.                                 279
              [DINESH MAHESHWARI, J.]

       17. The submissions that the respondent No. 2 had been in custody        A
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,
                                                                                B
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      C
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.
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      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                 E
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         F
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,     G
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.
     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                 H
280              SUPREME COURT REPORTS                        [2022] 19 S.C.R.


A     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.

B
      Divya Pandey                                                  Appeal allowed.
      (Assisted by : Roopanshi Virang, LCRA)




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