“NON-REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1595-1596 OF 2012
(Arising out of SLP (Criminal) Nos. 4409-4410 of 2012)
Younus Bin Omer Yafai @
Younus Bhai & Ors. …. Appellants
Versus
State of A.P. …. Respondent
WITH
CRLMP Nos. 18203-18204 of 2012
IN
CRIMINAL APPEAL NOS.1597-1598 OF 2012
(Arising out of SLP (Crl.) Nos.7919-7920 of 2012)
State of Andhra Pradesh …. Appellant
Versus
Awad Bin Younus Yafai etc. …. Respondents
WITH
CRLMP No. 19162 of 2012
IN
CRIMINAL APPEAL NO.1599 OF 2012
(Arising out of SLP (Crl.) No.7921 of 2012)
State of Andhra Pradesh …. Appellant
Versus
Mohammed Bin Saleh Wahlan & Ors. …. Respondents
WITH
CRLMP No. 19175 of 2012
IN
CRIMINAL APPEAL NO.1600 OF 2012
(Arising out of SLP (Crl.) No.7922 of 2012)
State of Andhra Pradesh …. Appellant
Versus
Abdulla Bin Younus Yafai …. Respondent
O R D E R
1. Delay in filing the Special Leave Petition is condoned in Special
Leave Petition (R)…. CRLMP nos. 18203-18204 of 2012, Special Leave Petition
(R)….CRLMP no. 19162 of 2012 and Special Leave Petition (R)…. CRLMP no.
19175 of 2012.
2. Leave granted in all the Special Leave Petitions.
3. On 13.4.2011, Shri Akberuddin Owaisi, a sitting Member of the
Legislative Assembly from the Chandrayangutta Constituency (hereinafter
referred to as, the MLA), alongwith Government officials, is alleged to
have visited Gurram Cheruvu area on Balapur road for inspection. The
purpose of the inspection was to identify government lands which were under
encroachment of private individuals. In the course of the aforesaid
inspection, while on his way back, it is alleged that he halted near the
patta lands of the family of the accused. Accused nos. 6 and 7 were
present at the spot, at that time. Accused no. 6 allegedly objected to the
MLA pointing out their lands to Government officials. This, in turn,
resulted in a heated exchange of words between them, during which accused
No. 6 allegedly warned the MLA of dire consequences.
4. On 14.4.2011, accused nos. 1 to 10 and 12 to 14 allegedly held a
meeting at Omer Function Hall, Chandrayangutta, wherein they decided to
eliminate the MLA. Accused no. 11 is alleged to have business investments
in the lands in question. It is also alleged, that accused no. 11
supported the decision of the other accused, to eliminate the MLA.
5. On 30.4.2011, the MLA alongwith another MLA Shri Ahmed Bala and his
supporters, after having concluded a meeting at the Corporator’s Office,
were in the process of getting into their respective vehicles. It is
alleged, that accused nos. 2 to 5, 7 to 10 and 13 to 15 had already
gathered outside the Corporator’s office. As the MLA sat in his Maruti
Gypsy, in order to stop the MLA from proceeding further, accused no. 2 is
alleged to have driven his motorcycle and thrown it in front of the vehicle
of the MLA. Thereafter, the accused are alleged to have attacked and
beaten up the MLA with knives etc., causing him serious injuries. The
accused are also alleged to have fired at the MLA from a revolver which
resulted in injuries to him in the abdominal area. The remaining accused
are alleged to have stopped those who tried to intervene to save the MLA.
These remaining accused are also alleged to have caused injuries to the
persons who tried to save the MLA and his supporters.
6. A police constable who had been deputed for the personal security of
the MLA, is alleged to have fired at the assailants, resulting in bullet
injuries to accused nos. 3 to 5.
7. The MLA was taken to Owaisi Hospital immediately after the incident.
On the same day, at about 9 P.M., he was shifted to Care Hospital, Banjara
Hills, Hyderabad. Accused nos. 3 to 5 who suffered bullet injuries, were
taken to Yashoda Hospital, where accused nos. 3 and 5 were admitted for
treatment. Accused no. 4 died due to bullet injuries suffered by him.
8. On 30.4.2011 itself, at about 2 P.M., Shri Mansoor Bin Mohammad
Awalgi, Corporator of Barkas Division filed a complaint at Police Station
Chandrayangutta, which led to registration of First Information Report
(FIR) no. 135 of 2011 against 16 accused (actually 15, since accused No. 4
had died of bullet injuries). The aforesaid FIR was registered under
Sections 147, 148, 324, 307 of the Indian Penal Code read with Sections 149
and 120 of the Indian Penal Code, as also, Section 27(1) of the Indian Arms
Act.
9. It is also necessary to notice, that accused nos. 1, 2 and 6 are real
brothers. They lived together at Barkas, Hyderabad. Accused nos. 3, 4, 5,
7, 8 and 13 are sons of accused No. 6. Accused no. 11 is allegedly a
family friend and business partner of accused nos. 1 and 6. There is also
a contrary version. It is the case of the accused, that the MLA and his
supporters went to the house of accused no. 1 and tried to molest the
womenfolk. The fight between the rival parties is stated to have taken
place on account of the said incident. Based on the aforesaid version, the
case of the accused has been, that the accused are actually the victims.
This factual position stands duly noticed in paragraph 9 of the impugned
order.
10. Accused nos. 6 and 11 were arrested on 3.5.2011. The trial Court
rejected the bail application of accused nos. 6 and 11 on 8.7.2011. The
order passed by the trial Court was assailed before the High Court of
Judicature of Andhra Pradesh at Hyderabad (hereinafter referred to as, the
High Court). On 21.7.2011, the High Court granted bail to accused nos. 6
and 11. In a separate petition filed before the High Court, bail was
granted to accused no. 5 on 24.8.2011. In yet another petition, the High
Court granted bail to accused nos. 1, 2 and 7 to 10 on 8.9.2011. The
aforesaid orders passed by the High Court dated 21.7.2011, 24.8.2011 and
8.9.2011 were assailed before this Court. On 16.3.2012, this Court passed
the following order:-
“Leave granted.
We have heard Mr. Harin Rawal, learned Additional Solicitor General
and Mr. Altaf Ahmad, learned senior counsel for the respondents. We
have gone through the impugned judgment and order dated 21.7.2011, and
perused the record of the case. Learned counsel for the appellant has
contended that without assigning any reason the High Court has passed
the order granting bail to the respondents.
Considering the facts and circumstances of the case, we are not
satisfied with the manner in which the bail application has been
disposed of by the High Court as no reason whatsoever, has been
assigned for grant of bail.
In view of the above, impugned order dated 21.7.2011 is set aside and
we request the High Court to decide the bail application afresh within
a period of six weeks from today. The respondents shall remain
protected in the meantime.
However, we make it clear that we have not expressed any view one way
or the other on the merits of the case.
In case the application is not disposed of within the stipulated time,
the respondents shall be at liberty to renew their prayer for interim
bail before the High Court.
Needless to say that the parties will co-operate and will not take
unwarranted adjournments before the High Court.
The appeal is disposed of.”
On the same day, in a connected matter, this Court set aside the order of
the High Court, wherein the High Court had directed the Station House
Officer, Central Crime Station, Hyderabad to register a case/crime at the
behest of the accused herein. The relevant extract of the aforesaid order
is being reproduced hereunder:-
“It has been pointed out by the learned counsel for the parties that
the High Court while dealing with the bail application has passed the
following order:-
(2) The Station House Officer, Central Crime Station,
Hyderabad, is directed to register a case/crime under
appropriate sections of law and against all the persons
concerned on the incident of police gunmen opening fire
against the accused party in this case after recording
statement of the petitioner/A5 or after receiving written
report given by him and to investigate into the same as per
law; and
(3) Directing the Government of Andhra Pradesh to initiate
Magisterial enquiry into the incident relating to opening
of fire by the police gunmen attached to the MLA of
Malakpet constituency causing death of A-4 and causing
bullet injuries to A-3 and A-5, and after receiving report
of the Magistrate to take steps according to law.
In the facts and circumstances of the case and after hearing Mr. Harin
Rawal, learned Additional Solicitor General and Mr. Altaf Ahmad,
learned senior counsel for the respondents and having gone through the
impugned judgment and order dated 21.7.2011, we are of the view that
it was not permissible for the High Court to issue the aforesaid
directions contained in paragraphs 2 and 3 while dealing with the bail
application. This kind of direction could be issued only while
dealing with the petition filed under Articles 226/227 of the
Constitution of India or under Section 482 of the Code of Criminal
Procedure.
In view of the above, with the aforesaid directions, the impugned
judgment and order of the High Court are set aside. Needless to say
that any consequential order passed/FIR lodged, if any, shall stand
washed off and would remain inconsequential.
However, it shall be open to the applicants to approach the
appropriate forum for seeking appropriate directions/remedy in
accordance with law.
With these observations, the appeal stands disposed of.”
11. Consequent upon the orders passed by this Court on 16.3.2012, the
bail applications filed by the accused before the High Court, were taken up
for reconsideration. It was contended before the High Court that inspite
of the fact that accused nos. 3 and 12 were alleged to have been armed with
fire arms and had fired at the MLA, they were released on bail, and the
order by which they were released, had not been assailed. It was
submitted, that the accused praying for bail before the High Court, were
not alleged to have caused any injury to the MLA or his supporters nor they
were alleged to be in possession of fire arms. It was further stated, that
consequent upon release of some of the accused on bail by the High Court
(vide orders dated 21.7.2011, 24.8.2011 and 8.9.2011), the accused had
remained on bail till this Court set aside the order passed by the High
Court, on 16.3.2012. It was pointed out that none of the accused released
on bail, had misused their freedom in any manner whatsoever. It was also
submitted on behalf of the accused, that three of the accused had also
suffered bullet injuries i.e., accused nos. 3 to 5. All the three accused
who had suffered bullet injuries were taken to Yashoda Hospital, where
acused nos. 3 and 5 were admitted for treatment, whereas accused no. 4 died
of the bullet injuries suffered by him. It was, therefore, contended that
the injuries to the accused side were far serious than the injuries
suffered by the complainant side. It was also contended, that the accused
side is seriously prejudiced on account of the influence of the MLA, in as
much as, all efforts made by the accused party to register a complaint
expressing their side of the story, had remained futile. It was also
contended on behalf of accused, that most of the accused comprised of
members of one family alone who had been victimized on account of the
influence of the MLA.
12. Having considered the submissions advanced at the hands of the rival
parties before the High Court, on 25.4.2012, the High Court ordered, that
accused nos. 2, 5 and 7 to 10 shall continue to remain on bail. Accused
nos. 1, 6 and 11 were declined bail.
13. The aforesaid order of the High Court dated 25.4.2012, has been
assailed through several special leave petitions. Special Leave Petition
(Crl.) Nos. 4409-4410 of 2012 were filed on behalf of accused nos. 1, 6 and
11 who had been declined bail. Special Leave Petitions (R)…. CRLMP Nos.
18203-18204 of 2012 were filed by the State of Andhra Pradesh assailing the
order of the High Court for granting bail to accused nos. 2, 5 and 7 to 10.
Special Leave Petition (R)…. CRLMP No. 19162 of 2012 was filed for
assailing the order of the High Court in granting bail to accused nos. 12
to 15, and Special Leave Petition (R)…. CRLMP No. 19175 of 2012 was filed
by the State of Andhra Pradesh assailing the action of the High Court in
granting bail to accused no. 3.
14. Leave has already been granted in all the said special leave
petitions. Since all the matters have been filed as against the common
order passed by the High Court dated 25.4.2012, and since the factual
controversy is also the same; all the matters shall be disposed of by the
instant common order. In passing the instant order, pleadings in Special
Leave (Crl.) Nos. 4409-4410 of 2012 have been relied upon.
15. It is not necessary for us to delineate the factual position all over
again. All relevant facts have already been noticed in the foregoing
paragraphs. From the sequence of facts narrated, it is apparent that
accused nos. 1, 6 and 11 are the main accused, as they are alleged to have
determined the course of events of the incident dated 30.4.2011, which is
subject matter of the complaint in First Information Report no. 135 of 2011
registered at Police Station Chandrayangutta. The other accused had their
own individual roles. Prima facie, the roles attributed to the respective
accused, as have been depicted in the video clipping recorded by the listed
witness no. 22 Shri Shaik Salem, cannot be overlooked. Insofar as the
aforesaid video clipping is concerned, reference may be made to the
following observations recorded in the chargesheet dated 30.6.2011 filed
with reference to the allegations contained in First Information Report no.
135 of 2011 registered at Police Station Chandrayangutta:-
“The video clipping recorded by LW-22 Shaik Salem shows the presence
of the accused at the scene i.e. A-2 with a butcher’s knife, A-4
Ibrahim stabbing Akbar with dagger, A-3 Abdullah struggling to release
his weapon from the hands of LW-12 MLA Balala with the support of
accused A-7 and A-14. A-5 Awad Bin Awad Younus Yafai carrying a
cricket bat and racing to give a blow. The video also shows the
severely injured Akbaruddin being shifted into Gypsy by LW-1 Mansoor
Awalgi, LW-2 Mohamood Awalgi, LW-11 Al Kaseri, LW-28 Bawazeer and LW-
13 Habeeb Osman, LW-14 Mustafa Baig, LW-13 Samad Bin Abided, LW-19 MD
Shareed, LW-8 Fayyaz Khan are also found at the scene of offence in
the videograph.”
It is therefore apparent, that the aforesaid video clipping notices the
presence and participation of accused nos. 2, 3, 4, 5, 7 and 14.
Therefore, as of now, prima facie, the participation of these accused in
the occurrence of 30.4.2011 cannot be seriously doubted, unless of course,
during the course of evidence, the video clipping is shown to be doctored.
16. The allegations, as they appear in the chargesheet dated 30.6.2011,
leave no room for doubt, that the accusations are of a very serious nature.
In broad day light, at 11.10 AM, an elected representative of the people,
was attacked, without any fear of the repercussions. The attacks resulted
in serious injuries to him. In the aforesaid attack, at least two of the
accused were in possession of guns. The MLA is alleged to have received
gun shot injuries as well. The allegations constitute an open challenge to
civil society. Persons involved in the alleged incident can not be
accepted to remain disciplined if enlarged on bail. It is likely that they
would threaten witnesses, which would severely prejudice the outcome of the
trial. In fact, it has been noticed in the impugned order passed by the
High Court that accused no. 8, after his release on bail, had picked up a
quarrel with the MLA on 1.3.2012, and an entry of the aforesaid fact was
recorded in the Station General Diary. The aforesaid factual position has
been noticed in paragraph 10 of the impugned order. The same was
emphatically highlighted by the learned Additional Solicitor General who
represented the State of Andhra Pradesh. It is also apparent, that if the
trial concludes by returning a finding against the accused, they would be
liable to be subjected to extremely severe punishment(s). As of now, the
period of their custody is trivial in comparison to the punishment
prescribed for the offences for which they are charged.
17. In the aforesaid view of the matter, we are satisfied that the main
accused i.e., accused nos. 1, 6 and 11 are clearly disentitled to the
benefit of bail. Accordingly, Criminal Appeals arising out of Special
Leave Petition (Crl.) Nos. 4409-4410 of 2012 are hereby dismissed.
18. Insofar as the other cases filed by the State of Andhra Pradesh are
concerned, a video clipping clearly demonstrates the presence of accused
nos. 2 to 5, 7 and 14 at the place of occurrence. As such, bail granted to
accused nos. 2, 3, 5, 7 and 14 (since accused no. 4 whose presence was
shown in the video clipping, has already died) by the High Court, is hereby
set aside. Taking into consideration the fact that the complainant, in the
First Information Report, has involved a large number of members in one
family, wherein the accused nos. 1, 2 and 6 are real brothers, and the
other accused are their children, it would be just and appropriate to
affirm the order passed by the High Court qua all the accused other than
the main accused and the accused depicted in the video clipping.
Accordingly, the order of the High Court extending the benefit of bail to
accused nos. 2, 3, 5, 7 and 14 is hereby set aside. The bail granted to
the rest of the accused, by the High Court, is affirmed.
19. Accordingly, Criminal Appeals arising out of Special Leave Petition
(Crl.) Nos. 4409-4410 of 2012 are dismissed. And, Criminal Appeals arising
out of Special Leave Petition (R)…… CRLMP Nos. 18203-18204 of 2012, Special
Leave Petition (R)…… CRLMP No. 19162 of 2012, and Special Leave Petition
(R)….. CRLMP No. 19175 of 2012, are disposed of in the aforesaid terms.
20. Any observations or inferences drawn in the instant order shall not
prejudice the rival parties in the ongoing criminal prosecution.
…………………………….J.
(B.S. CHAUHAN)
…………………………….J.
(JAGDISH SINGH KHEHAR)
New Delhi;
October 5, 2012
.
.
-----------------------
13
