YOUNUS BIN OMER YAFAI @ YOUNUS BHAI Vs STATE OF A.P.
Bench: B.S. CHAUHAN,JAGDISH SINGH KHEHAR
Case number: Crl.A. No.-001595-001596 / 2012
Diary number: 17807 / 2012
Advocates: MOHD. IRSHAD HANIF Vs
D. MAHESH BABU
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“ 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
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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
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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.
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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
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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
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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
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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
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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,
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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
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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
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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
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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.
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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
.
.
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