Azam Khan Case : Supreme Court Sets Aside HC's Bail Condition That District Magistrate Should Take Over Jauhar University Land

Criticising the "new trend" of High Courts passing irrelevant observations and orders while considering bail applications, the Supreme Court set aside a bail condition imposed by the Allahabad High Court to seal the premises of Mohammad Ali Jauhar University at Rampur while granting bail to Samajwadi Party leader Azam Khan.

Azam Khan is one of the members of the board of trustees of the University.

In the plea filed by Khan seeking directions to the State authorities to, inter alia, de-seal the portions of the premises of the Mohammed Ali Jauhar University, which were sealed pursuant to the directions of the Allahabad High Court in a bail application, the Supreme Court, on Friday, directed the Joint Magistrate/Deputy District Magistrate, Rampur to take immediate steps to de-seal it. However, the Apex Court made it abundantly clear that its order would not impact any proceeding for sealing if initiated independent of the impugned order of the High Court.

By its order dated 10.05.2022, the High Court, while granting bail to Azam Khan in an alleged case of grabbing of Enemy Property for the construction of the said University, had directed the Rampur District Magistrate to take possession of the property attached to the campus of Jauhar University by June 30, 2022, and raise a boundary wall with barbed wire around it. Further, a request was made to the Custodian Evacuee Property Mumbai to hand over the concerned property in dispute to some para military forces for their training purposes, as already done in the year 2014.

On the basis of the order of the High Court, on 18.05.2022, the State authorities issued notice to demolish two buildings of the University. By way of the notice the University's Registrar was asked to vacate the premises. Though the demolition did not take place, the authorities have sealed two buildings - the sports complex and the building that houses Dean and Senior Staff.

A Bench comprising Justices A.M. Khanwilkar and J.B. Pardiwala expressed disappointment at the new trend in bail orders, wherein the High Courts' are exceeding their authority to delve into issues which are not relevant to the determination of the bail pleas.

"...This is yet another matter where we find the HC has referred to matters which are unrelated to consideration of prayer for bail in respect of concerned crime. …High Court ought to have dealt with only those aspects which were related to bail and not venture into unrelated issues, much less to impose conditions much beyond what is required to ensure presence of accused during investigation and trial."

In view of the same, the Bench set aside the bail condition which resulted in the sealing of the premises of the University, making it clear that the other conditions imposed by the High Court would prevail throughout the bail period.

"It is unnecessary to deal with all aspects of matter, except to hold that after carefully considering the conditions we have no hesitation in setting aside that part of the order while retaining the conditions relevant for grant of bail…"

The Bench categorically refused to impose an additional condition proposed by the Additional Solicitor General, Mr. S.V. Raju. He had beseeched it to restrain Khan from entering Rampur District for atleast the next 6 months, considering the eye-witnesses in the particular case are all situated therein and Khan being an influential person might pressurize them.

Previously, on 27.05.2022, a vacation Bench of the Supreme Court had stayed the High Court's directions in this regard till the next date of hearing. It had noted, prima facie, the said condition imposed for grant of bail was disproportionate and had no reasonable nexus with the object of securing the presence of the accused. In view of the stay order, a letter was sent to the SDM, Sadar Rampur to de-seal the property and restore peaceful possession of the sealed portion. However, the authorities were non-compliant.

Khan's application argues that the wilful disobedience and utter disregard to comply with the order of the Apex Court dated 27.05.2022, which had taken away the very foundation of the action of sealing and taking possession of the property by the State authorities is in the nature of contempt.

Senior Advocate, Mr. Kapil Sibal appearing on behalf of Khan provided a brief background of the case. He urged that in terms of the order of the vacation Bench of the Supreme Court, the operation of the concerned bail condition was stayed, therefore the State authorities who had sealed the University premises based on the High Court's order ought to restore possession.

"On 10th May, 2022, HC's order was passed. 18th May, 2022, State issued notice to demolish the two buildings. That was to happen on 19th May, 2022….they have sealed the property. We informed them that we have filed an SLP. Instead of waiting, on 24th May, they did what they had to do. On 27th May, 2022 there was an order of this Court which stayed this part of the HC's order. Then we asked them to dismantle all this."

Finding merit in Mr. Sibal's submission, Justice A.M. Khanwilkar told the ASG -

"You have to restore the status quo ante."

Deprecating the emerging trend of High Courts exceeding jurisdiction in bail applications, Justice Khanwilkar reckoned that if sealing proceedings have to be initiated under law, then it ought to be independent of the observation made in the impugned order of the High Court.

"Let me tell you we are disturbed by this trend. You cannot exercise the power on the basis of this bail order. You take action under other law, not under the HC order. We are on the correctness of the bail order. We will say that we will efface this observation from the record; authorities can take action under some other law."

Without making any attempt to defend the impugned bail condition, Mr. Raju submitted that Khan should have taken recourse to set aside the sealing order. He added that the University has encroached upon enemy property as well as property of poor farmers, which was grabbed forcefully.

Justice Khanwilkar reiterated that from the sealing order it is clear that it was issued on the basis of the bail order of the High Court -

"Sealing order was independent or based on the observation of the High Court? You cannot do so, if based on observation of the High Court. Look at the sealing order, it refers to the bail order. You do it independently, if there is any actionable claim."

Mr. Raju argued that as per the High Court's order the interim bail condition directing DM, Rampur to take possession of the concerned premise was required to be met in order for Khan's interim bail to become regular. He contended that the said condition if set aside, the bail would not become regular and has to be decided afresh by the High Court. The Bench refused to accept the submission as the concerned interim condition itself was 'unacceptable'.

As the Bench indicted that they might set aside the entire order of the High Court and remand it back for fresh consideration, Mr. Sibal implored it not to do so, as the same would cause prejudice to Khan. To demonstrate the adverse impact of remand to the same Judge, he cited instances wherein the said Judge had kept Khan's bail pleas in abeyance for a long period of time. He submitted -

But, the bail application was pending for quite some time before the HC. The idea was to keep him in jail. Your lordships know why it is so…His bail applications were kept in abeyance by the Judge (HC) for a long time. He was not passing the order. This is very serious.

Justice Khanwilkar stated, in that case, they can send it back to another Bench. However, ultimately the Bench thought it fit to set aside only the concerned bail condition and direct the authorities to de-seal the University premises, with immediate effect.

[Case Title: Mohammad Azam Khan v. State of UP SLP (Crl) 5315 of 2022]

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