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HIGH COURT OF DELHI
Date of order: 20th November, 2024
ASHISH KOCHAR .....Petitioner
Through: Mr. Maninder Singh, Senior Advocate
Through: Mr. Yudhvir Singh Chauhan, APP.
Mr. Aradhya Malik, Advocate for complainant.
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. By way of the present application filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter “CrPC”) (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023) read with Section 428 of the CrPC (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the petitioner/applicant seeks regular bail in FIR No. 181/2018 registered for offences punishable under Sections 302/307/34 of the Indian Penal Code, 1860 (hereinafter “IPC”) and Sections 27/54/59 of the Arms Act, 1959, at Police Station -Mehrauli, Delhi.
2. The brief facts that led to the filing of the present application are as follows: a. The incident that led to the filing of the FIR No. 181/2018 occurred at around 11:30 PM on 16th March, 2018, in front of C- 14, Phase-II, Chattarpur Enclave, New Delhi. Thereafter, Mr. Rakesh Kumar (hereinafter “the complainant/Mr. Rakesh”), the President of the Resident Welfare Association (hereinafter “RWA”) for A, B, and C Blocks in Chattarpur Enclave, filed the said FIR on 17th March, 2018 at Police Station -Mehrauli, Delhi. b. In the said FIR, it was stated that the petitioner and one Mr. Sandeep Gupta had ongoing conflicts with him and Mr. Jaidev, who was the Vice-President of the RWA, due to disputes over parking space and balcony extensions in their building. c. On the date of the incident, i.e., 16th March, 2018, Mr. Rakesh, Mr. Jaidev and Mr. Nitin (Mr. Rakesh’s son) were coming back from an event, when they noticed that Mr. Sandeep and the petitioner were sitting in a car, with one Mr. Anil Kaura standing outside. When they stopped at the corner of C-14 for dropping Mr. Jaidev, it is alleged that they were verbally abused and physically attacked by Mr. Sandeep and the petitioner. d. Upon hearing the noise due to the brawl that broke out, Mr. Sumit (hereinafter “the deceased”), who was Mr. Jaidev’s son, and Mr. Gaurav, Mr. Rakesh’s son, arrived at the scene. It is alleged that the petitioner then took out a gun and fired at Mr. Rakesh. Mr. Nitin, Mr Rakesh’s son, saved his father by pushing him down, consequently suffering gunshot injuries to his head and hand. The petitioner subsequently fired another shot, hitting the deceased in the chest, causing him to collapse. The gun fell from petitioner’s hand and Mr. Anil picked it up before all the accused fled in their car from the site where the incident took place. e. The deceased and Mr. Nitin were then taken to Fortis Hospital in a private vehicle where Mr. Sumit was declared dead with the postmortem report citing haemorrhagic shock due to gunshot injury sustained to chest, as the cause of death, whereas Mr. Nitin was treated and subsequently discharged. Thereafter, the said FIR was registered at Police Station – Mehrauli. f. Mr. Sandeep was arrested on 17th March, 2018 and thereafter, on 19th March, 2018, the petitioner and Mr. Anil were also arrested. However, it is pertinent to note that the revolver used in the incident was not recovered. During the course of investigation, the petitioner revealed to the Investigation Officer that he had purchased the weapon from someone named Mr. Ajay and had thrown the same into the wagon of a moving goods train. g. On 24th March, 2018, Mr. Jaidev submitted a written statement to the SHO Police Station-Mehrauli, corroborating Mr. Rakesh’s initial statement. Mr. Jaidev, thereafter on 30th March, 2018, submitted his supplementary statement, claiming that after the deceased fell, he heard a loud horn and saw Ms. Nidhi Kochar, wife of the petitioner, urging the petitioner and other accused from the car to quickly finish their task. h. Mr. Rakesh Kumar and Mr. Nitin submitted supporting statements on 7th April, 2018, subsequent to which on 18th April, 2018, Mr. Gaurav provided a supplementary statement, supporting Mr. Jaidev's version. i. Ms. Nidhi was subsequently arrested on 11th April, 2018 and thereafter, the learned Trial Court vide order dated 4th October, 2018 discharged Ms. Nidhi, whereas charges were framed against the petitioner, Mr. Sandeep Gupta and Mr. Anil Kaura. j. On multiple occasions previously, the petitioner has been granted interim bail by the Court. However, when the petitioner approached the Court concerned for grant of regular bail, it was denied vide order dated 29th March, 2022. Thereafter, the petitioner filed an application seeking regular bail before this Court, however, the same was dismissed as withdrawn with liberty to file it afresh. k. Hence, the present petition is filed before this Court.
3. Mr. Maninder Singh, learned senior counsel appearing on behalf of the petitioner submitted that the entire investigation is completed, the chargesheet has been filed and 19 out of 53 enlisted witnesses have already been examined. Therefore, the version of the incident of the public witnesses is already recorded and they cannot be influenced at this stage.
4. It is submitted that the examination in chief of 3 witnesses namely – Mr. Rakesh, Mr. Jaidev and Mr. Gaurav has been recorded but their crossexamination has been deferred on multiple grounds including the Covid-19 pandemic, whereas it is also pertinent to note that at this point, Mr. Gaurav stands cross-examined by the petitioner.
5. It is submitted that the petitioner is not a flight risk, and that he is married and even has two minor children, one of whom is a newly born child, and that for his family, the petitioner is the sole earner.
6. It is submitted that the petitioner is not even remotely connected with the mode and manner in which the incident has allegedly taken place and that he is falsely implicated in this case due to the old enmity that exists between the complainant and the petitioner.
7. It is submitted that the petitioner has never engaged in any act that may interfere with the fair conduct of the trial in the present matter. There is no allegation that the petitioner has ever attempted to influence any witness. Therefore, despite remaining in the vicinity of the public witnesses in the present case, no attempt has been made by the petitioner to tamper with any kind of evidence.
8. It is submitted that there are multiple versions of the prosecution’s story, which does not render it credible, and therefore, the petitioner is entitled to the grant of regular bail. It is further submitted that there was an inordinate delay in both - the registration of the FIR and the filing of the chargesheet, which still remains unexplained. Therefore, in view of the foregoing submissions, it is prayed that the instant application may be allowed and the petitioner may be released on bail.
9. Per Contra, the learned APP appearing on behalf of the State vehemently opposed the instant application submitting to the effect that the same may be dismissed being devoid of any merits and lack of grounds for grant of bail.
10. It is submitted that the petitioner and Mr. Sandeep were builders and used to build big balconies while constructing a building. On the other hand, Mr. Rakesh and Mr. Jaidev being the office-bearers of the RWA of Blocks A, B and C of Chattarpur, had forbidden them from doing so, which instilled enmity between the two sides.
11. It is submitted that on 16th March 2018, a scuffle broke out between the two sides, which ultimately led to the petitioner firing at the chest of the deceased, after which his gun fell down. After firing at the deceased, the accused persons fled the spot and it is pertinent to note that one of the accused persons, Mr. Anil, picked up the gun from the ground, which had fallen from the petitioner’s hand after he fired at the deceased. The deceased was thereafter rushed to the hospital, where he was declared dead. It is further submitted that Mr. Nitin was also shot in his hand and head.
12. It is submitted that the petitioner should not be granted bail as he, along with other accused persons, has committed a grave offence, and pertinently, process under Section 82 of the CrPC has been initiated against one of the co-accused, Mr. Anil, who as per the learned Trial Court has absconded or is trying to conceal himself, and hence, the petitioner may also abscond if he is released on bail.
13. Therefore, in view of the foregoing submissions, it is prayed that the instant application may be dismissed.
14. Heard the learned counsel appearing on behalf of the parties and perused the material placed on record.
15. Before adverting to the merits of the instant case, this Court finds it appropriate to discuss the settled position of law with respect to the principles to be followed by the Court for the grant of bail to an accused.
16. In Ajwar v. Waseem., 2024 SCC OnLine SC 974, the Hon’ble Supreme Court clarified the position of law on the factors to be considered for granting bail and observed as under:
Uttar Pradesh; Anil Kumar Yadav v. State (NCT of Delhi); Mahipal v. Rajesh Kumar @ Polia (supra).”
17. In State of Haryana v. Dharamraj.,2023 SCC OnLine SC 1085, the Hon’ble Supreme Court reiterated the relevant considerations while granting bail and observed as under:
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.’
18. Upon perusal of the above, it is made out that while it is wellestablished in the bail jurisprudence that bail is the rule and jail is the exception, it does not follow as a corollary that bail must be granted without consideration of the relevant factors affecting the case. In the abovementioned judgements, the Hon’ble Supreme Court has posited the law on the relevant factors that are to be considered by Courts for granting bail.
19. The abovementioned judgements of the Hon’ble Supreme Court establish comprehensive parameters to govern the grant of bail. The nature and gravity of the accusation, specifically the role played by the accused, must be considered by the Court, in addition to the severity of the punishment in case of conviction of the accused.
20. While we acknowledge that individual liberty is an invaluable right, this consideration must be carefully balanced when evaluating bail applications. The Court cannot overlook the gravity of the accusations against the accused and the relevant facts of the case while deciding bail applications. This is particularly crucial when the accusations appear to have substance and are not frivolous or vexatious, but are instead supported by sufficient material placed on record and presented before the Court, enabling it to take a prima facie view of the case.
21. While deciding a bail application, the Court must give sufficient consideration to various aspects, including the nature of the alleged offence. Additionally, the Court must consider the severity of the punishment that would be imposed if the accused were to be convicted of the alleged offences and whether there is a strong likelihood of evidence tampering or influencing of witnesses if the bail is granted. All these factors collectively inform the Court’s decision-making process in determining whether to grant bail to an accused. This comprehensive evaluation ensures that bail decisions are made with due consideration to both individual rights and the interests of justice, taking into account all the relevant circumstances based on the materials presented before the Court.
22. At this stage, it is imperative to evaluate the submissions of the learned counsel appearing for the parties.
23. The learned senior counsel appearing on behalf of the petitioner submitted that the petitioner is not a flight risk and has never come in the way of conducting a fair trial by way of tampering any evidence or influencing any witness in the present case despite being in their vicinity.
24. The learned APP submitted that a co-accused, namely Mr. Anil Kaura, has absconded and process has been issued against him under Section 82 of the CrPC. It is further submitted that if the petitioner is granted bail, he may also abscond and for this reason, bail must be denied.
25. The Hon’ble Supreme Court in the case of Sebil Elanjimpally v. State of Odisha, 2023 SCC OnLine SC 677, while deciding if the factum of nonsurrender by a co-accused is a factor in deciding the grant of bail to an accused, held that:
26. In the case of Munshi Sah v. State of Bihar, 2023 SCC OnLine SC 1916, the Hon’ble Supreme Court, while deciding if grant of bail to an accused depends upon the surrender of another accused, held that:
27. In light of the above said judgments, this Court is of the considered view that the question of grant of bail to an accused cannot solely depend on the fact that a co-accused has absconded or is trying to conceal himself and has not appeared in the trial.
28. Therefore, the fact that one of the co-accused in the present case has absconded or is trying to conceal himself, and process has been initiated against him under Section 82 of the CrPC, cannot be the sole factor for deciding the question of grant of bail to the petitioner.
29. The learned senior counsel for the petitioner contended that there are some inconsistencies in the prosecution’s version of the incident that led to the demise of the deceased. With respect to this ground, this Court is of the view that the said ground is a subject matter of trial and can only be determined at the stage of trial, and any evaluation of the same by this Court at the current stage will lead to a determination of the merits of this matter, which cannot be done by the Court while deciding the bail application.
30. It has also been submitted that the petitioner has never taken any untoward step which is likely to prejudice the conduct of the trial in a fair manner, and that the petitioner has not made any attempt to tamper with any evidence or influence any witness in the present case.
31. It has been submitted that 19 out of 53 enlisted witnesses have already been examined and discharged, and the examination-in-chief of 3 public witnesses has been already conducted while their cross examination has been deferred on various grounds.
32. It is well-settled in law that the possibility of the accused tampering with evidence or influencing witnesses must be given due consideration while adjudicating a bail application. If the Court is satisfied that the accused will likely obstruct the course of proceedings and delivery of justice in any manner, bail shall not be granted.
33. In the instant case, the petitioner is accused of commission of the offence of murder, which is a grave and serious offence. The petitioner is alleged to have been waiting near Mr. Jaidev’s house in his car along with other co-accused, subsequent to which a brawl broke out, which led to the petitioner allegedly firing at the deceased’s chest. This Court is prima facie satisfied that the prosecution’s case in support of the charge against the accused, points towards the commission of the offence by the petitioner, which has been corroborated by the testimonies of the key witnesses, including Mr. Rakesh and Mr. Jaidev, who were present at the place where the incident took place.
34. In the case of State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, the Hon’ble Supreme Court set aside an order of the High Court whereby bail was granted to the accused therein, having no regard to the material placed by the prosecution therein, which indicated that the accused had, at times tried to interfere with the course of investigation by tampering with evidence, intimidating witnesses and creating obstacles in the path of investigation officers and derail the case.
35. In the case of Kamla Devi v. State of Rajasthan, (2022) 6 SCC 725, the Hon’ble Supreme Court set aside an order of the High Court granting bail to the accused therein without taking into account material aspects of the case. In this case, the accused had committed the offence of murder and attempted to clandestinely dispose of the dead body and the lathis used to attack the deceased, by throwing them in a well. There were 13 witnesses that were yet to be examined. Considering the material aspects, the Hon’ble Court set aside the order granting bail to the accused therein.
36. In the present case, the Chargesheet and the learned Trial Court in its order on charge dated 4th October, 2018 has recorded that the petitioner had disclosed during the investigation that after the commission of the offence, he had thrown the revolver in the wagon of a moving goods train, the particulars of which are unknown to him. Therefore, prima facie, it appears that the accused had clandestinely indulged in tampering a vital piece of evidence in the present case, such that it could not be recovered despite diligent efforts by the Investigation Officer to recover the same.
37. As per the materials placed on record, only 19 out of 53 enlisted witnesses have been examined. Further, some of the key witnesses have not been completely cross-examined yet as the same was deferred, including Mr. Jaidev, who is the deceased’s father and was present at the place of the incident.
38. The petitioner’s prior conduct does not inspire this Court’s confidence that he will not attempt to tamper evidence or influence the witnesses who are yet to be examined completely if the present application is allowed. This Court is unable to accept the submission of the learned senior counsel appearing on behalf of the petitioner that the petitioner has never interfered with the conduct of a fair trial and has never engaged in any act of evidence tampering, and for this reason, the Court is not convinced that the petitioner will not indulge in evidence tampering or influencing of witnesses if bail is granted to him.
39. Therefore, this Court is of the considered view that, at this stage, bail cannot be granted to the petitioner under Section 439 of the CrPC (now Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023), as it is likely to obstruct the course of justice considering that there is a strong likelihood that the petitioner, who is accused of committing a heinous offence, may engage in tampering the evidence or influencing the witnesses once the bail is granted to him.
40. Therefore, in light of the settled position of law as well as the facts of the present case, this Court, at this stage, does not find any cogent reasons on merits for granting bail to the petitioner as no grounds have been made out by the petitioner warranting the same.
41. Accordingly, the instant bail application stands dismissed along with the pending applications, if any.
42. It is made clear that the observations made hereinabove are solely for the purpose of deciding bail and the same shall not be taken as the expression of this Court on the merits of the case.
43. The order be uploaded on the website forthwith.