Holding

The Supreme Court held that the High Court’s grant of regular bail to the accused was unjustified and the bail orders were quashed.

Summary

The case concerns a double murder alleged to have occurred on 19 May 2020 when the accused fired indiscriminately at the complainant’s house, killing his two sons and injuring his nephew. The complainant filed an FIR and the accused were charged under several IPC sections; the Allahabad High Court later granted regular bail to four accused (Waseem, Nazim, Aslam and Abubakar) under Section 439(1) of the CrPC. The complainant challenged the bail orders, arguing the seriousness of the offence, the specific role of the accused, their criminal antecedents, threats to witnesses and the allegation that one accused committed another double murder while on bail. The Supreme Court examined the parameters for bail, emphasizing that courts must consider gravity, role, antecedents, risk of tampering, and that bail orders must be reasoned and not perverse. Finding that the High Court ignored these factors, granted bail on parity without proper reasoning, and overlooked serious allegations, the Court held the bail orders unjustified. Consequently, all four bail orders were quashed, the respondents were directed to surrender, and the appeals were disposed of.

Issues considered

Whether the High Court was justified in exercising jurisdiction under Section 439(1) of the CrPC to grant regular bail to the accused in a case involving double murder and other serious offences.
Whether the bail orders were perverse, unreasoned, or based on irrelevant material, thereby warranting interference by the Supreme Court.
What parameters and considerations must be applied by courts when granting bail in serious criminal cases.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 161, s. 340, s. 439(1), s. 482
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 352, s. 504

Subjects

BailRegular bailDouble murderEye-witnessesPeriod of custody of the accusedProtest petitionNature of the accusationsGravity of the offenceRole attributed to the accusedCriminal antecedents of the accusedProbability of tampering of the witnessesUnreasoned or perverse order of bailMisused the bail grantedSupervening circumstances

Judgment

[2024] 5 S.C.R. 575 : 2024 INSC 438

Ajwar
v.
Waseem and Another
(Criminal Appeal No. 2639 of 2024)
17 May 2024
[Hima Kohli* and Ahsanuddin Amanullah, JJ.]

Issue for Consideration
High Court, if justified in exercising jurisdiction u/s. 439(1) Cr.P.C
for granting regular bail in favour of the accused persons.

Headnotes†
Code of Criminal Procedure, 1973 – s. 439(1) – Special
powers of High Court or Court of Session regarding bail –
Complainant’s case that on account of previous enmity, the
accused persons indiscriminately fired at the complainant
and his two sons, resulting in death of his sons and serious
injuries to his nephew – Grant of regular bail to the accused
by the High Court – Justification:
Held: Orders granting bail not justified and suffers from grave
infirmity – High Court completely lost sight of the principles that
conventionally govern a Court’s discretion at the time of deciding
whether bail ought to be granted or not – High Court ignored
that the complainant stuck to his version as recorded in the FIR
and even after entering the witness-box, the complainant and
three eyewitnesses specified the roles of the accused in the
entire incident – High Court also overlooked the fact that the
accused had previous criminal history – One of the accused
while on bail, is alleged to have committed the double murder
of the complainant’s son – Allegations that three of the accused
threatened one of the key eye-witnesses in open Court, and an
FIR was registered – High Court also overlooked the period of
custody of the accused for such a grave offence alleged to have
been committed by them – Furthermore, in the cross-FIR filed by
accused persons, closure was filed by the police – Protest petition
filed by complainant is pending arguments – Thus, the accused do
not deserve the concession of bail – Impugned orders quashed
and set aside. [Paras 30-35]
* Author
576 [2024] 5 S.C.R.

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Bail – Grant of, in cases involving serious offences – Relevant
parameters to be considered:
Held: Courts to consider the nature of the accusations made
against the accused; the manner in which the crime is alleged
to have been committed; the gravity of the offence; the role
attributed to the accused; the criminal antecedents of the accused;
the probability of tampering of the witnesses and repeating the
offence, if the accused released on bail; and the possibility of
obstructing the proceedings and evading the courts of justice.
[Para 26]
Bail – Grant of – Cancellation, when – Considerations for
setting aside the bail:
Held: Bail once granted, ought not to be cancelled in a mechanical
manner – However, an unreasoned or perverse order of bail
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 – Bail can be set aside
when any supervening circumstances may have occurred after
granting relief to the accused, the conduct of the accused while
on bail, attempt on the part of the accused to delay the trial,
attempt to tamper with the evidence, threats being extended to
the witnesses while on bail – However, the court to examine only
a prima facie case, and detailed reasons relating to the merits
of the case to be avoided – Bail order should reveal the factors
that have been considered by the court for granting relief to the
accused. [Paras 27, 28]

Case Law Cited
Mahipal v. Rajesh Kumar @ Polia and Another [2019] 14 SCR
529 : (2020) 2 SCC 118; Ajwar v. Niyaj Ahmad and Another
[2022] 7 SCR 356 : (2022) SCC OnLine SC 1403; Jagjeet
Singh and Others v. Ashish Mishra [2022] 4 SCR 536 : (2022) 9
SCC 321; Deepak Yadav v. State of Uttar Pradesh and Another
[2024] 5 S.C.R. 577

Ajwar v. Waseem and Another

[2022] 4 SCR 1 : (2022) 8 SCC 559; P v. State of Madhya
Pradesh and Another [2022] 3 SCR 823 : (2022) 15 SCR 211;
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and
Another (2004) 7 SCC 528; Kumer Singh v. State of Rajasthan
and Another [2021] 6 SCR 539 : (2021) SCC OnLine SC 511;
Yashpal Singh v. State of Uttar Pradesh and Another [2022] 4
SCR 835 : (2023) SCC Online SC 347; Manno Lal Jaiswal v.
State of Uttar Pradesh and Another [2022] 1 SCR 990 : (2022)
15 SCC 248; Chaman Lal v. State of U.P. and Another [2004]
Supp. 3 SCR 584 : (2004) 7 SCC 525; Masroor v. State of Uttar
Pradesh and Another [2009] 6 SCR 1030 : (2009) 14 SCC 286;
Prasanta Kumar Sarkar v. Ashis Chatterjee and Another [2010] 12
SCR 1165 : (2010) 14 SCC 496; Neeru Yadav v. State of Uttar
Pradesh and Another [2014] 12 SCR 453 : (2014) 16 SCC 508;
Anil Kumar Yadav v. State (NCT of Delhi) and Another [2017] 11
SCR 195 : (2018 12 SCC 129); Puran v. Ram Bilas and Another
[2001] 3 SCR 432 : (2001) 6 SCC 338; Narendra K. Amin (Dr.)
v. State of Gujarat and Another [2008] 6 SCR 1149 : (2008) 13
SCC 584 – referred to.

List of Acts
Code of Criminal Procedure, 1973.

List of Keywords
Bail; Regular bail; Double murder; Eye-witnesses; Period of custody
of the accused; Protest petition; Nature of the accusations; Gravity of
the offence; Role attributed to the accused; Criminal antecedents of
the accused; Probability of tampering of the witnesses; Unreasoned
or perverse order of bail; Misused the bail granted; Supervening
circumstances.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2639
of 2024
From the Judgment and Order dated 07.12.2022 of the High Court
of Judicature at Allahabad in CRMBA No. 26740 of 2022
With
Criminal Appeal Nos. 2640, 2641 and 2642 of 2024
578 [2024] 5 S.C.R.

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Appearances for Parties
Shreeyash U. Lalit, Ansar Ahmad Chaudhary, Md. Anas Chaudhary,
Ms. Shehla Chaudhary, Pulkit Agarwal, Vikas Kumar, Mohammad
Asim Khan, Shoaib Ahmad Khan, Faiyaz Khalid, Kavindra Yadav,
Altamash Ahmad, Sandeep Garausa, Krishnagopal Abhay, Ms.
Runjhun Garg, Abhinav Aggarwal, Himanshu Vats, Iduddin, Jazib
Siddiqui, Ms. Bushra Ali, Advs. for the Appellant.
Ardhendumauli Kumar Prasad, A.A.G., Sidharth Luthra, Sr. Adv., Ms.
Preeti Gupta, Sitab Ali Chaudhary, Kartikeye Dang, MZ Chaudhary,
Hamid Ali, Gufran Ali, Ms. Rubina, Sadik, Sheryab Ali, Rajat Singh,
Ms. Shweta Yadav, Ms. Vartika Singh, Ms. Ananya Sahu, Sarthak
Chandra, Deepesh Singh, Arun Pratap Singh Rajawat, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Hima Kohli, J.
1. Leave granted.
2. The present appeals are directed against four different orders passed
by the learned Single Judges of the High Court of Judicature at
Allahabad on applications moved by Waseem (accused No. 7)1,
Nazim (accused No. 8)2, Aslam (accused No. 2)3 and Abubakar
(accused No.1)4 under Section 439 Code of Criminal Procedure,
19735 for seeking regular bail in respect of Case Crime No.126 of
2020 registered at Police Station Mundali, District Meerut, Uttar
Pradesh for offences punishable under Sections 147, 148, 149, 302,
307, 352 and 504 read with Section 34 of Indian Penal Code, 18606.
Vide orders dated 07th December, 2022, 13th February, 2023 and
02nd March, 2023 and 21st March, 2023 respectively, the applications
filed by Waseem, Nazim, Aslam and Abubakar were allowed by

1 Respondent No. 1 in Criminal Appeal arising out of SLP(Crl.) 513 of 2023
2 Respondent No. 1 in Criminal Appeal arising out of SLP (Crl.) 2437 of 2023
3 Respondent No. 1 in Criminal Appeal arising out of SLP (Crl.) No. 13404 of 2023
4 Respondent No. 1 in Criminal Appeal arising out of SLP(Crl.) No. 16310 of 2023
5 Cr.P.C.
6 IPC
[2024] 5 S.C.R. 579

Ajwar v. Waseem and Another

different Benches of the High Court. Aggrieved by the said orders,
the appellant-Complainant has approached this Court.
BRIEF FACTS
3. The relevant facts of the case, as recorded in a First Information
Report7 registered on the complaint received from the appellant -
complainant herein on 19th May, 2020, are that the incident in question
had taken place on 19th May, 2020 at 7.30 in the evening when the
appellant-complainant, his two sons, Abdul Khaliq and Abdul Majid
with some other persons were sitting in the baithak of his house for
breaking the fast (Roza Iftar) and preparing to offer prayers. The
accused persons (10 in number, namely, Nazim, Abubakar, Waseem,
Aslam, Gayyur, Nadeem, Hamid, Akram, Qadir and Danish) arrived at
the spot and indiscriminately fired at the appellant and his two sons.
Both the sons of the appellant died on the spot and his nephew,
Asjad was seriously injured. The appellant-complainant has alleged
that there was previous enmity between the parties due to which the
accused persons had attacked him and his sons.
4. Pertinently, Niyaz Ahmed, father of Waseem (accused No. 7) was
not named in the FIR. His role in the incident came up during the
course of the investigation conducted by the police and based
thereon, his name was added as a co-accused. On completion of
the investigation, a chargesheet was submitted under Section 173
Cr.P.C. on 23rd June, 2020 against eight accused including Abubakar
(accused No. 1), Niyaz Ahmad, Aslam (accused No.2) and Nazim
(accused No. 8). Aslam is the nephew of Nazir and Nazim is the
cousin of Waseem, whose father, Niyaz Ahmad was enlarged on bail
by the High Court, vide order dated 4th August 2022, which order
was set aside by this Court on 30th September, 2022 in a Criminal
Appeal8 filed by the appellant-complainant. Three other accused
were not found to be involved in the offence and on conclusion of
the investigation, no chargesheet was filed against them.
PROCEEDINGS AFTER FILING OF CHARGESHEET
5. After the chargesheet was filed, the case was committed to the
Sessions Court and was registered as Sessions Trial No.574 of

7 FIR
8 Criminal Appeal No.1722 of 2022
580 [2024] 5 S.C.R.

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2020. The same is pending trial before the Court of the Additional
Sessions Judge, Court 15, Meerut. Charges were framed and twenty
witnesses have been cited by the prosecution. Out of the said list
of witnesses, seven are eyewitnesses. The trial has commenced.
Four eyewitnesses have been examined so far. Three eyewitnesses
are yet to be examined. The statement of the appellant-complainant
(PW-1) and three other eyewitnesses (PW-2, PW-3 and PW-4) have
been recorded. The prime witnesses have elaborated the role of
the respondents herein, i.e., Waseem (A-7), Nazim (A-8), Aslam
(A-2) and Abubakar (A-1). Two more witnesses were summoned for
examination on 7th May, 2024.
REASONS FOR SETTING ASIDE THE EARLIER BAIL ORDER
GRANTED BY THE HIGH COURT IN FAVOUR OF WASEEM
6. Earlier hereto, Waseem(A-7) was granted bail by the High Court
vide order dated 22nd August 20229. The said order was challenged
by the appellant-complainant before this Court10. Vide order dated
14th October, 2022, this Court cancelled the bail granted to Waseem
observing that it was apparent from a perusal of the order dated
22nd August, 2022 passed by the High Court that Waseem was
granted bail on the basis of a co-ordinate Bench granting bail to his
father, Niyaz Ahmad, vide order dated 4th August, 2022. Since the
order passed in favour of Niyaz Ahmad was set aside by this Court
vide order dated 30th September, 2022, the bail application filed by
Waseem before the High Court was restored for fresh consideration
and expeditious disposal, preferably within a period of one month
from the date of receipt of the copy of the said order. It is expedient
to extract below the relevant part of the order dated 30th September,
202211, passed by a Division Bench of this Court [of which one of
us (Hima Kohli, J) was a member], overturning the order passed by
the High Court granting bail in favour of Niyaz Ahmad:
“9. At the outset, it needs to be noted that this Court has
had occasion to peruse a succession of orders by
the same Judge of the High Court of Judicature at
Allahabad (which were challenged in Special Leave

9 Criminal Misc. Bail Application No.26740 of 2022
10 Criminal Appeal No. 1784 of 2022
11 Criminal Appeal No.1722 of 2022 (Ajwar Vs. Niyaz Ahmad and Anr.).
[2024] 5 S.C.R. 581

Ajwar v. Waseem and Another

Petitions before this Court) containing identical reasons
as recorded above for the grant of bail. As a matter of
fact, in the counter affidavit, which has been filed by
the first respondent, the fact that similar orders have
been passed by the Single Judge has been relied upon
though with the submission that the first respondent
should not be penalized for the High Court’s failure
to record adequate reasons. The first respondent in
the course of his counter affidavit states as follows:
“…In fact, the present case is not the only
case, in which so called reasons are not
assigned by the Hon’ble High Court while
grating bail. There are many other cases
also in which the same or similar orders
were passed by the Hon’ble High Court and
perhaps will be passed in future, as well.
Therefore, the Respondent No.1 may not
be penalized for something on which he
has no control at all and it is the judicial
discretion of the Hon’ble High Court to
give reasons or not to give reasons while
granting bail…”
10. The manner in which the Single Judge of the High
Court has disposed of the application for bail is
unsatisfactory. In determining as to whether bail
should be granted in a matter involving a serious
criminal offence, the Court is duty bound to consider:
(i) The seriousness and gravity of the crime;
(ii) The role attributed to the accused;
(iii) The likelihood of the witnesses being tampered
with if bail is granted;
(iv) The likelihood of the accused not being available
for trial if bail is granted; and
(v) The criminal antecedents of the accused.
11. In successive orders, the Single Judge of the High
Court granted bail containing the same sentence,
582 [2024] 5 S.C.R.

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purportedly of reasons. Merely recording that the
Court has had regard to the nature of the accusation,
the severity of the punishment in the case of
conviction, the nature of supporting evidence, prima
facie satisfaction of the Court in support of the charge,
reformative theory of punishment and the larger
mandate of Article 21 is not a satisfactory method for
the simple reason that the facts of the case have to
be considered. Moreover, not all the circumstances
referred to above will weigh in the same direction. The
duty to consider the circumstances of the case cannot
be obviated by setting down legal formulations.”
7. This Court noted that as the order grating bail in favour of Niyaz
Ahmad had been set aside, the subsequent order passed by the
High Court on 22nd August, 2022, granting regular bail in favour
of the accused Waseem could not be sustained. As a result, the
appeal preferred by the appellant-complainant was allowed and the
order granting bail in favour of Waseem(A-7) was set aside with a
direction issued to the High Court to consider the matter afresh. It
is on the basis of the said directions that the impugned order has
been passed. The factors that have persuaded the learned Single
Judge of the High Court to allow the application filed by the accused,
Waseem are encapsulated in the following para :
“Considering the overall facts and circumstances, the
nature of allegation, the gravity of offence, the severity
of the punishment, the evidence appearing against the
accused, submission of learned counsel for the parties,
considering the law laid down in the case of Lakshmi Singh
and others vs. State of Bihar and Others, Babu Ram
and Others vs. State of Punjab and Amarjeet Singh vs.
State of Haryana, this Court thinks that eleven accused
persons are said to have assaulted the complainant side
after indiscriminate firing in which only three persons had
sustained injuries on their persons, who later on, died in the
hospital from the side of the complainant and the accused
side had also received serious injuries, accused Niyaj
Ahmad has also suffered gun shot injury in the incident
and the injuries sustained by the accused side has not
been explained by the prosecution. They ought to have
[2024] 5 S.C.R. 583

Ajwar v. Waseem and Another

been explained by the prosecution and since it seems that
there is a cross version of the incident and it is very difficult
to ascertain at this stage who was the aggressor and it
will be decided at the stage of trial after taking evidence
from both the sides; but without expressing any opinion
on merits, this Court finds it to be a fit case for bail.”
ARGUMENTS ON BEHALF OF THE APPELLANT-COMPLAINANT
8. Appearing for the appellant-complainant, Mr. Shreeyash U. Lalit and
Mr. Ansar Ahmad Chaudhary, learned counsel submitted that this is a
case of double murder of two young sons of the appellant-complainant
at the hands of the accused persons who harboured previous enmity
against him and his family members. Waseem (A-7) was arrested
on 27th May, 2020. The other accused persons were arrested on
different dates. After their arrest, the police conducted a search of
the respondents and recovered five illegal country-made pistols,
seven live cartridges and five used cartridges from the possession
of Aslam (A-2). A specific role has been attributed to each of the four
respondents herein that resulted in the death of the appellant’s two
sons and serious injuries to his nephew. All the four respondents
herein were named in the FIR, besides the other co-accused. During
the course of investigation, the statements of eleven independent
witnesses were recorded under Section 161 Cr.P.C. wherein an
active role has been attributed to all the four respondents. Later on,
the appellant-complainant entered the witness box and appeared as
PW-1. He has reiterated the role played by the respondents herein
in committing the offence. Two other independent eye witnesses,
namely, Abdullah (PW-2), Asjad (PW-3) and Fahimuddin (PW-4)
have supported the testimony of the appellant (PW-1).
9. Learned counsel for the appellant-complainant further states that the
High Court has completely overlooked the fact that the respondents-
accused parties were the aggressors who had forcibly entered the
house of the appellant-complainant and indiscriminately fired at
him, his sons and other persons who had gathered at his house to
break the fast. They have criminal antecedents and several cases
are registered against them. Even before completion of a period
of six months granted by the High Court, by an earlier order dated
7th April, 2022 passed on an application moved by the appellant-
complainant under Section 482 Cr.P.C for issuing directions to the
584 [2024] 5 S.C.R.

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trial Court to complete the trial in a definite period, the High Court
has proceeded to grant bail in favour of Waseem on the grounds of
parity with his father; similar orders have been passed in favour of
Nazim12, Aslam13 and Abubakar14. It has also been pointed out that
from the side of the accused persons, a cross case was registered15
on the basis of an application moved under Section 156(3) of the
Cr.P.C. The matter was investigated and the police filed its final report.
The Magistrate directed fresh investigation, which was followed by
a second final report. Yet again, the Magistrate passed an order
on 18th November, 2022 directing further investigation and the said
case was reopened. A closure report was subsequently submitted
which was placed before the Magistrate on 5th August, 2023 and is
pending final orders.
10. It was next argued by learned counsel for the appellant-complainant
that the respondents have been deliberately delaying conclusion of
the trial on one pretext or the other. He submitted that this conduct
of the respondents was adversely commented upon by the Additional
Sessions Judge, Court No.15, Meerut in his order dated 23rd August,
202216, wherein it was observed that five dates were taken by the
accused but they failed to cross-examine the appellant – complainant
and the accused were cautioned that if the cross-examination
would not be completed, then their right to cross-examine him
would be closed. To delay the trial, the co-accused, Niyaz Ahmad
filed a transfer petition before the Sessions Court, requesting that
the trial be conducted by some other Additional Sessions Judge,
on the plea of bias. This application was rejected vide order dated
7th December, 2022. The order dated 07th December, 2022 was
unsuccessfully challenged before the High Court and vide order
dated 08th February, 2023, the Transfer Application17 of Niyaz Ahmed
was dismissed. It was observed that the trial was at the initial stage
and several applications were being moved before the trial Court for
lingering the trial. Yet again, as a strategy, the counsel engaged by

12 vide order dated 13th February, 2023
13 vide order dated 2nd March, 2023
14 Vide order dated 21st March, 2023
15 Case Crime No.361/2020
16 Session Case No. 1126 of 2020
17 Transfer Application (Crl.) No. 688 of 2022
[2024] 5 S.C.R. 585

Ajwar v. Waseem and Another

four accused persons withdrew his power of attorney, stating that
his clients weren’t co-operating with him. When the Sessions Court
closed their right to cross-examine PW-2 vide order dated 14th March,
2023, Nazim Ali approached the High Court18. Vide order dated 16th
May, 2023, the High Court allowed the said application subject to
costs of ₹ 10,000/- (Rupees Ten Thousand only) payable to PW-2
and permitted his cross examination.
11. As for the subsequent conduct of the respondents, it was pointed
out that after being released on bail, one of the prime eyewitnesses,
Abdullah (PW-2) was sought to be intimidated by them and their
supporters. Abdullah (PW-2) filed a complaint on 21st March, 2023
which was registered as an FIR19, wherein it was alleged that five
accused persons i.e. three respondents herein (Waseem, Nazim and
Aslam) and the co-accused, Hamid and Ayyub had threatened him
in open Court. After he left the Court premises, he was thrashed by
them. On an application moved by PW-2, he was extended protection
by the Court. Subsequently, the police filed a closure report in respect
of the captioned FIR, but the learned Magistrate passed an order on
7th July, 2023, directing further investigation in the matter.
12. Lastly, it has been contended that none of the respondents have
clean antecedents, which is apparent from the counter affidavit filed
by the respondent No.2 – State of Uttar Pradesh, which aspect has
been lost sight of by the High Court while granting bail in their favour.
13. In support of their submission that individual facts of the case are
relevant factors that must be considered by the court while considering
a bail application under Section 439 Cr.P.C., learned counsel for
the appellants cited the decisions of this Court in Mahipal vs.
Rajesh Kumar @ Polia and Another20, Ajvar vs. Niyaj Ahmad
and Another21, Jagjeet Singh and Others vs. Ashish Mishra22,
Deepak Yadav vs. State of Uttar Pradesh and Another23 and P vs.

18 Application No. 18195 of 2023
19 FIR No.0095 dated 22nd March, 2023
20 [2019] 14 SCR 529 : (2020) 2 SCC 118
21 [2022] 7 SCR 356 : 2022 SCC OnLine SC 1403
22 [2022] 4 SCR 536 : (2022) 9 SCC 321
23 [2022] 4 SCR 1 : (2022) 8 SCC 559
586 [2024] 5 S.C.R.

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State of Madhya Pradesh and Another24 urging that the accused
herein have been in custody for less than three years and were not
entitled to any relief by way of bail. Reliance has been placed on
Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and
Another25. Kumer Singh vs. State of Rajasthan and Another26,
Yashpal Singh vs. State of Uttar Pradesh and Another27 and
Manno Lal Jaiswal vs. State of Uttar Pradesh and Another28 have
been cited to urge that at the stage of considering an application for
being released on regular bail, the individual role of each accused
is not required to be considered when they were allegedly a part of
an unlawful assembly and charged with offences punishable under
Section 149 IPC.
ARGUMENTS ADVANCED ON BEHALF OF THE ACCUSED-
RESPONDENTS
14. The present petitions have been strongly opposed by Mr. Siddharth
Luthra, Senior Advocate appearing for the accused-respondents
Waseem, Nazim and Aslam and Mr. Sitab Ali Chaudhary, learned
counsel for the accused-respondent Abubakar. Learned counsel
submitted that any delay in completing the trial cannot be attributed
to the respondents and the adjournments referred to by the learned
trial judge in the order dated 23rd August 2022 were not on account of
the respondents. In fact, the prosecution witness was available only
on two dates for his cross-examination and only one date was taken
by the accused, Niyaz Ahmed on medical grounds. He submitted
that accused Waseem did not misuse the liberty granted to him by
the High Court vide order dated 22nd August, 2022 and when his
bail order was set aside by this Court on 14th October, 2022 and
remanded back to the High Court for passing a reasoned order, he
had surrendered on time. The allegation that the respondents are
involved in several other cases is also refuted by learned counsel
stating that the accused Waseem is involved in only one other

24 [2022] 3 SCR 823 : (2022) 15 SCR 211
25 (2004) 7 SCC 528
26 [2021] 6 SCR 539 : 2021 SCC OnLine SC 511
27 [2022] 4 SCR 835 : (2023) SCC Online SC 347
28 [2022] 1 SCR 990 : (2022) 15 SCC 248
[2024] 5 S.C.R. 587

Ajwar v. Waseem and Another

case29 besides the present one, where he is on bail. The co-accused
Nazim is also similarly stated to be involved in one other case, i.e.
the captioned case along with Waseem, besides the present case
(namely Criminal Case no. 214 of 2016) where he has been released
on bail. As for the accused Aslam, it is stated that besides the present
case, he is involved in CC No. 214/1630, CC No. 129/2031 and CC
No. 95/2332. The accused Abubakar is involved in one other case28
besides the present one.
15. Learned counsel submitted that the appellant-complainant himself is
a well-known criminal of the area, having several cases registered
against him as also his two sons. The criminal history of the appellant-
complaint and his two deceased sons, Abdul Majid and Abdul Khaliq
have been detailed in paras 19 to 21 of the counter affidavit. As per
the respondents, 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 2 cases.
16. Next, contending that bail once granted cannot be cancelled until
there are supervening circumstances and in the present case there
are no such circumstances that require setting aside of the impugned
orders, learned counsel for the respondents supported the impugned
orders and requested that the present appeals be dismissed. It was
additionally submitted that even when the accused Waseem was
released on bail, he had abided by the conditions of bail imposed
on him and did not misuse the liberty in any manner.
17. On merits, learned counsel for the respondents submitted that there
was previous enmity between the parties; that three persons had been
falsely introduced in the FIR against whom no case was made out and
after investigation, their names were dropped from the chargesheet;
that the prime eye-witnesses (PW-1, 2, 3 and 4) are related to the
deceased being their father/uncle/cousin, etc. Several loopholes in
the prosecution version were sought to be highlighted by the learned
counsel for the respondents relating to conducting the inquest of the
deceased Abdul Majid, the difference in the time between reporting

29 Crime Case No. 214 of 2016 under Section 147, 148, 149, 307, 342, 323, 308 IPC, P.S. Mundali, Meerut.
30 Under Sections 147/148/149/342/323/308 IPC, P.S. Mundali District Meerut.
31 Under Sections 3/25 Arms Act IPC, P.S. Mundali District Meerut.
32 Under Section 504/506 IPC, P.S. Civil Lines District Meerut.
588 [2024] 5 S.C.R.

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the crime that took place on 19th May, 2020, at 2030 hours as against
the time when the investigation had allegedly started (1818 hours);
the alleged manipulation in the Medico Legal Reports of the injured,
Asjad; the role of Asjad (nephew of the appellant-complainant) who
had allegedly called twice on the mobile phone of Abubakar (brother
of the accused, Waseem) which fact could be verified from the CDR
details of the mobile phone and showed that the injured Asjad was
the aggressor who had threatened to kill Waseem’s brother. It was
also contended that the appellant-complainant and 15 other persons
with him were present at the mosque and not at his residence, as
recorded in the chargesheet and they were the ones who had badly
assaulted Waseem’s brother, entered his residence and thrashed his
family members. Aggrieved by the same, when Waseem’s mother
(Ms. Saeeda Begum) had filed a Complaint Case on 07th July, 2020
before the Court of the Additional Magistrate-I, Meerut, an order was
passed directing the police to register an FIR33 against 15 persons. A
closure report was filed by the local police but the Judicial Magistrate
did not accept the same and has directed further investigation in
the matter.
18. Learned counsel for the respondents submitted that the real reason
behind the dispute between the appellant-complainant and his family
members and the accused and his family members related to political
rivalry as the appellant-complainant had lost the election for the
post of Village Pradhan and then proceeded to falsely implicate the
accused persons.
19. Learned counsel argued that where there are two bullet injuries, one
each to the two deceased by three assailants, there is a possibility
of over-implication of the accused persons. Finally, an assurance
has sought to be extended to this Court that the respondents will
not abscond as they are permanent residents of the village and they
shall continue cooperating for timely completion of the trial.
20. Mr. Sarvesh Singh Baghel, learned counsel appearing for the
respondent No. 2 – State of Uttar Pradesh has filed a counter
affidavit34 supporting the case of the appellant-complainant and
stating inter alia that the High Court did not consider the fact that

33 Case Crime No. 361 of 2020 under Section 147, 148, 149, 452, 323, 307, 34, 504 and 506 of IPC
34 In Special Leave Petition (Crl.) No. 513 of 2023
[2024] 5 S.C.R. 589

Ajwar v. Waseem and Another

the present case involves a serious offence. There are accounts
of eye-witnesses that have categorically specified the role of the
accused-respondents and that there was a definite motive to commit
the offence and injuries were caused intentionally that had resulted
in the death of the two deceased persons. It was further submitted
that there is a likelihood of the accused persons influencing the trial
and threatening the eye-witnesses.
QUESTION INVOLVED
21. We have heard learned counsels for the parties, carefully examined
the records and the impugned orders. The short question that falls for
our consideration is whether the High Court was justified in exercising
jurisdiction under Section 439(1) of the Cr.P.C for granting regular
bail in favour of the respondents in the facts and circumstances of
the present case.
FIRST ROUND OF LITIGATION
22. As noted above, this is the third time that the appellant-complainant
has approached this Court for relief. Earlier hereto, aggrieved by the
order dated 4th of August, 2022, passed by the learned Single Judge
of High Court of judicature at Allahabad, directing release of Niyaz
Ahmad (father of the accused, Waseem) in connection with the very
same case, the appellant-complainant had filed an appeal35. Noting
that successive orders were being passed by the same judge of
the High Court mentioning identical reasons as stated in the order
dated 4th August, 2022, this Court had expressed its dissatisfaction
and opined that merely setting down legal formulations cannot be
a ground for granting bail and that due application of mind was
not apparent in the facts of the case that reveals the seriousness
and gravity of the offence. As a result, the order dated 14th August,
2022, enlarging Niyaz Ahmad on bail was set aside and the appeal
preferred by the appellant-complainant was allowed.
SECOND ROUND OF LITIGATION
23. The second round of litigation took place when the appellant-
complainant approached this Court being aggrieved by an order dated
22nd August, 2022, passed by learned Single Judge of the High Court

35 Criminal Appeal No. 1722 of 2022 arising out of SLP(Crl.) No. 8139 of 2022)
590 [2024] 5 S.C.R.

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admitting the accused Waseem to bail in the same case36. Since
bail was granted in favour of the accused Waseem on parity with
his father, Niyaz Ahmad and the said order37 was subsequently set
aside by this Court on 30th September, 2022, the appeal preferred
by the appellant-complainant38 was allowed and the application for
bail filed by the accused Waseem was restored to be decided afresh
by the High Court.
PRESENT ROUND OF LITIGATION
24. The third and present round of litigation has commenced on four
orders passed by learned Single Judges of the High Court, impugned
herein in respect of the four accused respondents. The first order
dated 07th December, 2022 enlarging the accused Waseem on bail,
was passed on merits. The subsequent three orders dated 13th
February, 2023, 02nd March, 2023 and 21st March, 2023, granting
bail in favour of Nazim, Aslam and Abubakar respectively, are on
grounds of parity.
POST MORTEM REPORT OF THE TWO DECEASED PERSONS,
SONS OF THE APPELLANT-COMPLAINANT
25. We may note that the post mortem report of the deceased, Abdul
Khaliq shows that he had received one firearm injury in his head
and the cause of his death was cranio-cerebral damage as a result
of ante-mortem firearm injury which was sufficient to cause death in
ordinary course of nature. The post mortem report of the deceased,
Abdul Majid showed that he had sustained one firearm entry wound
in the abdomen and one exit wound corresponding to each other
and the cause of his death was shock and hemorrhage as a result
of ante-mortem firearm injury. The injury report of the injured, Asjad
(nephew of the appellant-complaint) showed that he had sustained
a lacerated wound on the skull and bruises and abrasion on other
parts of his body. All the three respondents herein have been named
in the FIR alongwith five other accused. The appellant-complainant
being the informant, had reiterated the events narrated in the FIR
in his statement recorded on 20th of May, 2020 under Section 161

36 Criminal Misc. Bail Application No. 26740 of 2022
37 Order dated 4th August, 2022 by the High Court.
38 Criminal Appeal no. 1784 of 2022 arising out of SLP(Crl.) 9342 of 2022
[2024] 5 S.C.R. 591

Ajwar v. Waseem and Another

Cr.P.C. After the chargesheet was submitted in Court on 23rd June,
2020, cognizance of the offence was taken and the case was
committed to the Sessions Court for trial. So far, deposition of four
eye-witnesses have been recorded (PW 1, 2, 3 and 4) and all of
them have attributed a role to the accused respondents.
RELEVANT PARAMETERS FOR GRANTING BAIL
26. While considering as to whether bail ought to be granted in a matter
involving a serious criminal offence, the Court must consider relevant
factors like the nature of the accusations made against the accused,
the manner in which the crime is alleged to have been committed,
the gravity of the offence, the role attributed to the accused, the
criminal antecedents of the accused, the probability of tampering of
the witnesses and repeating the offence, if the accused are released
on bail, the likelihood of the accused being unavailable in the event
bail is granted, the possibility of obstructing the proceedings and
evading the courts of justice and the overall desirability of releasing
the accused on bail. (Refer: Chaman Lal v. State of U.P. and
Another39; Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu
Yadav and Another (supra); Masroor v. State of Uttar Pradesh
and Another40; Prasanta Kumar Sarkar v. Ashis Chatterjee and
Another41; Neeru Yadav v. State of Uttar Pradesh and Another42 ;
Anil Kumar Yadav v. State (NCT of Delhi) and Another43; Mahipal
v. Rajesh Kumar @ Polia and Another (supra).
27. 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

39 [2004] Supp. 3 SCR 584 : (2004) 7 SCC 525
40 [2009] 6 SCR 1030 : (2009) 14 SCC 286
41 [2010] 12 SCR 1165 : (2010) 14 SCC 496
42 [2014] 12 SCR 453 : (2014) 16 SCC 508
43 [2017] 11 SCR 195 : (2018 12 SCC 129)
592 [2024] 5 S.C.R.

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in such an order. In P v. State of Madhya Pradesh and Another
(supra) decided by a three judges bench of this Court [authored by
one of us (Hima Kohli, J)] has spelt out the considerations that must
weigh with the Court for interfering in an order granting bail to an
accused under Section 439(1) of the CrPC in the following words:
“24. As can be discerned from the above decisions, for
cancelling bail once granted, the court must consider
whether any supervening circumstances have arisen or
the conduct of the accused post grant of bail demonstrates
that it is no longer conducive to a fair trial to permit him
to retain his freedom by enjoying the concession of bail
during trial [Dolat Ram v. State of Haryana, (1995) 1 SCC
349 : 1995 SCC (Cri) 237] . To put it differently, in ordinary
circumstances, this Court would be loathe to interfere with
an order passed by the court below granting bail but if such
an order is found to be illegal or perverse or premised on
material that is irrelevant, then such an order is susceptible
to scrutiny and interference by the appellate court.”
CONSIDERATIONS FOR SETTING ASIDE BAIL ORDERS
28. 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.
29. In Jagjeet Singh (supra), a three-Judges bench of this Court, has
observed that the power to grant bail under Section 439 Cr.P.C is of
wide amplitude and the High Court or a Sessions Court, as the case
may be, is bestowed with considerable discretion while deciding an
[2024] 5 S.C.R. 593

Ajwar v. Waseem and Another

application for bail. But this discretion is not unfettered. The order
passed must reflect due application of judicial mind following well
established principles of law. In ordinary course, courts would be
slow to interfere with the order where bail has been granted by the
courts below. But if it is found that such an order is illegal or perverse
or based upon utterly irrelevant material, the appellate Court would
be well within its power to set aside and cancel the bail. (Also refer:
Puran v. Ram Bilas and Another44; Narendra K. Amin (Dr.) v.
State of Gujarat and Another45)
DISCUSSION
30. Keeping in mind the aforesaid parameters, we may now proceed
to examine the pleas taken by the parties so as to decide as to
whether the impugned orders can be sustained or not. On a careful
consideration of the entire records, we are inclined to agree with
submission made by learned counsel for the appellant-complainant
that the impugned orders are unjustified and suffer from grave infirmity.
The primary factor that has swayed the learned Single Judge of the
High Court in granting bail to the accused Waseem is that even though
the prosecution version is that 11 accused persons had assaulted the
appellant-complainant and members of his family on indiscriminate
firing taking place, only three persons had sustained injuries and two
had expired on the side of the appellant-complainant. At the same
time, serious injuries were also received on the side of the accused
which could not be explained by the prosecution. In the case of the
accused Nazim, the High Court observed that there was no distinction
between the role attributed to him and the co-accused Waseem and
that the injuries suffered on the side of the respondent had not been
explained by the prosecution. 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. In the case
of Aslam, his bail application was allowed and learned Single Judge
observed that there is a cross-version of the incident inasmuch as
the accused side had also received serious injuries which were not
satisfactorily explained by the prosecution. In the case of Abubakar,
noting that the co-accused Aslam was granted bail by a coordinate

44 [2001] 3 SCR 432 : (2001) 6 SCC 338
45 [2008] 6 SCR 1149 : (2008) 13 SCC 584
594 [2024] 5 S.C.R.

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Bench and the case of Abubakar was similar to that of Aslam, he
was granted the benefit of bail on grounds of parity.
31. In our opinion, the High Court has completely lost sight of the
principles that conventionally govern a Court’s discretion at the time
of deciding whether bail ought to be granted or not. 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 details whereof have been furnished
by the Counsel for the State of UP. It is worthwhile to note that the
accused Nazim was granted bail in FIR No. 214 of 2016 on 10th
January, 2017 and while on bail, he is alleged to have committed a
double murder of the two sons of the appellant-complainant.
32. 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 registered46. 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.
33. Furthermore and most importantly, 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. As per the
submission made by learned counsel for the State of UP, before
being released on bail, the accused-Waseem had undergone custody
for a period of about two years four months, the accused-Nazim for
a period of two years eight months, the accused-Aslam for a period
of about two years nine months and the accused Abubakar, for a
period of two years ten months. In other words, all the accused-
respondents have remained in custody for less than three years
for such a serious offence of a double murder for which they have
been charged.

46 FIR No. 95 of 2023
[2024] 5 S.C.R. 595

Ajwar v. Waseem and Another

34. Learned Counsel for the appellants and the State of UP have also
informed this Court that in the cross-FIR filed by Smt. Saeeda Begum
(w/o Niyaz Ahmad mother of Waseem) at the instance of the accused
persons, a closure was filed by the police. Vide order dated 04th
September, 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 captioned 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 Cr.P.C against the complainant in the cross-FIR which
has been registered vide order dated 15th January, 2024 and is due
to come up for arguments.
35. All the aforesaid factors when examined collectively, leave no manner
of doubt that the respondents do not deserve the concession of bail.
As a result, all the four impugned orders are quashed and set aside.
The respondents are directed to surrender within two weeks from
the date of passing of this order. It is, however, clarified that the
observations made above are limited to examining the infirmities in
the impugned orders and shall not be treated as an opinion on the
merits of the matter which is still pending trial. It is also clarified that
in the event of any new circumstances emerging, the respondents
shall be entitled to apply for bail at a later stage.
36. The appeals arising out of the petitions for special leave to appeal
are disposed of on the above terms.

Result of the case: Appeals disposed of.

†
Headnotes prepared by: Nidhi Jain