Full Text
HIGH COURT OF DELHI
Date of Decision: 18th JANUARY, 2022 IN THE MATTER OF:
PARVEZ ..... Petitioner
Through Mr. Pankaj Kumar, Advocate.
Through Mr. Amit Mahajan, SPP with Mr. Rajat Nair, SPP with Mr. Dhruv Pande and Mr. Shantnu Sharma, Advoctes with SI Surender Kumar, PS Crime Branch.
JUDGMENT
1. The Petitioner seeks bail in FIR No.39/2020 dated 28.02.2020 registered at P.S. Gokul Puri for offences under Sections 147/148/149/302/436/427 of the Indian Penal Code, 1860 (hereinafter, “IPC”).
2. The FIR relates to the violence that took place in the National Capital Territory of Delhi in the month of February 2020.
3. The brief facts leading to the instant Bail Application are that a protest against the Citizenship (Amendment) Act, 2019 (hereinafter, “CAA”) had been taking place, and in relation to this, the Complainant (ASI Gajraj Singh) received a PCR call vide DD No. 17A on 26.02.2020 that some rioters were pelting stones on Street No.1, near Kabir Builder, Bhagirathi 2022:DHC:214 Vihar. As per the FIR, the Complainant rushed to Bhagirathi Vihar where he was informed by a Beat Constable who in turn was informed by some people that the house of owner of Anil Sweets, which was located in Chaman Park, Main Brijpuri Road, had been set ablaze by rioters.
4. The FIR states that when the Complainant and the Beat Constable reached the said house, they found the door to be broken and house to be completely burnt. On inspecting the second floor, the Complainant noticed a semi-burnt body lying in the corner. The FIR further states that the deceased seemed to be about 20 years old, and that both the arms and legs of the body were chopped off. It is stated that the chopped limbs could not be found, and that on inquiry, it was found that the burnt body belonged to a person named Dilbar who was a waiter at the sweet house. The body was then sent to GTB Hospital and then to the GTB Hospital mortuary. The FIR states that it appears that unknown persons belonging to one of the parties opposing and supporting the CAA killed the deceased with a deadly weapon and then set the house ablaze with the intent to destroy the evidence of the crime.
5. It is stated that investigation is now complete and chargesheet has been filed against the Petitioner on 04.06.2020 wherein the Petitioner has been added. The chargesheet states that there is sufficient material to proceed against the Petitioner herein under Sections 144/147/148/149/188/153A/302/201/427/436/120-B/34 of the IPC. A supplementary chargesheet has also been filed on 07.07.2020.
6. Mr. Pankaj Kumar, learned Counsel for the Petitioner, has submitted that the Petitioner has been falsely implicated in the instant case. He has argued that there are 22 FIRs against the Petitioner and he is out on bail in 12 cases out of the 22, which indicates that the police have no clinching evidence against the Petitioner to connect him with the cases. He has further submitted that the Petitioner has neither been named in the FIR nor has any specific role been assigned to him.
7. Mr. Kumar has emphasized that the Petitioner has not been seen in any video footage, unlike the other co-accused in the matter. He has submitted that co-accused Rashid @ Monu has been enlarged on bail by this Court vide Order dated 22.02.2021 on the same ground that there was no electronic evidence against the Petitioner therein and, therefore, the Petitioner herein deserves to be granted bail on the ground of parity.
8. It has been submitted by Mr. Kumar, learned Counsel for the Petitioner that the incarceration of the Petitioner cannot be prolonged solely on the ground that the CDR places the Petitioner within the vicinity of the SOC. He has stated that the reliance cannot be placed on the CDR as the Petitioner is a resident of the area and it is but natural that he would be shown at that location. Mr. Kumar has further argued that statements under Section 161 Cr.P.C. of Ankit Pal, Amit Pal, Anil Pal and Chhidda Lal Tomar dated 16.03.2020, 01.04.2020, 05.03.2020 and 06.03.2020, respectively, cannot form the basis to keep the Petitioner in custody as the veracity of the same must be tested during the course of trial. Further, Mr. Kumar has informed this Court that the statements were recorded at a belated stage of the investigation.
9. The learned Counsel for the Petitioner has further argued that the Petitioner is a young man of 34 years who is the sole bread earner in his family comprising of aged parents, wife and children. He has submitted that trial is likely to take a long time and no purpose will be served if the Petitioner remains behind bars. Mr. Kumar has stated that the Petitioner has roots in society and will not violate any conditions if enlarged on bail.
10. Per contra, Mr. Amit Mahajan, learned APP for the State, has submitted that the Petitioner had actively participated in the deadly riots on 24.02.2020 wherein the deceased Dilbar Negi was burnt alive. He has submitted that the present case emerges from a deep-rooted conspiracy which was hatched under the garb of democratically opposing CAA.
11. Mr. Mahajan has submitted that during the course of investigation, several eyewitnesses have identified the Petitioner herein and have confirmed that the Petitioner was involved in the mob that led to the fire and murder of the deceased Dilbar Negi. The learned APP has informed this Court that the witness Chhidda Lal Tomar vide his statement dated 06.03.2020 under Section 161 Cr. P.C. has categorically named the Petitioner and elucidated his role. He has submitted that similarly, Ankit Pal vide his statement under Section 161 Cr.P.C. has named the Petitioner as one of the accused in the mob who ransacked and destroyed several properties. Further, Anil Pal and Amit Pal vide their statements under Section 161 Cr.P.C dated 19.03.2020 and 01.04.2020, respectively, have also identified the Petitioner as a part of the mob which led to the death of the victim. Mr. Mahajan has also noted that the CDR of the Petitioner places him at the SOC.
12. The learned APP has brought the attention of the Court to the gravity of the offences that have been invoked against the Petitioner and has stated that he is relying upon the heinousness of the crime while opposing the instant bail application. He has submitted that the object of Section 149 IPC is different as it is impossible to identify everyone and that it is enough if one can show that the accused is a part of the riotous mob which led to the death of the victim. He has submitted that it is of no consequence that no specific conduct can be attributed to the Petitioner and that having participated in the riotous mob, the Petitioner is responsible for not only his own actions, but also the actions of the others.
13. The learned APP has relied on the judgment of this Court whereby coaccused Ashraf Ali was denied bail vide Order dated 14.10.2020 in BAIL APPLN. 2614/2020 wherein this Court had observed that there was a prima facie finding that the Petitioner therein was a part of the unlawful assembly which was responsible for setting fire to the godown in which the deceased Dilbar Negi was found burnt alive. This Court had further observed that the offence committed was serious and heinous enough to not enlarge the Petitioner therein.
14. Mr. Mahajan has further argued that that Ld. Trial Court vide Order dated 24.04.2021 had also dismissed the Petitioner’s bail application on the ground of heinousness of the offence and that parity could not be claimed as the CDR of the co-accused Rashid @ Monu was unreliable and four eyewitnesses have identified the Petitioner herein. He has, therefore, submitted before this Court that there has been no change of circumstances since the dismissal of the bail application of the Petitioner by the Ld. Trial Court and that period of incarceration undergone by the accused is not relevant while considering grant of bail. He has submitted that Section 436A of the Code of Criminal Procedure specifically provides for the maximum period for which an accused can be in custody while the trial is underway, and therefore, it should not be a relevant factor for grant of bail. Furthermore, Mr. Mahajan has submitted that the eyewitnesses reside in the same area as the Petitioner and may be susceptible to being influenced or threatened if the Petitioner is enlarged on bail.
15. The Court has heard Mr. Pankaj Kumar, learned Counsel for the Petitioner, and Mr. Amit Mahajan, learned APP, with Mr. Dhruv Pande. The Court has also perused the material on record.
16. A perusal of the chargesheet indicates that during the course of investigation in FIR No. 134/2020 registered at P.S. Dayalpur, two CCTV footages were retrieved from Rajdhani Public School – one on the corner wall of the school covering the sweet shop between Rajdhani Public School and Anil Pastry Shop, and another inside Rajdhani School near the main entry gate covering main Brijpuri Road, A-29, Chaman Park and some part of gate and railings of Rajdhani Public School. It is stated that in the chargesheet that though the case was registered on 28.02.2020, the incident was of 24.02.2020. The chargesheet, however, notes that the incident of the murder of Dilbar Negi was well-planned and was committed with the intention to disrupt law and order, and disturb communal harmony.
17. It is further stated in the chargesheet that during investigation, it had been found vide the CDR of the deceased that two calls at 08:18 P.M. and 09:07 P.M. had been made to Mahesh Yadav, a co-worker of the deceased on the night of 24.02.2020 and that the same had been confirmed by Mahesh who informed the IO that the deceased told him that he was hiding in the building. The chargesheet states that the statement of Mahesh Yadav is yet to be recorded as he is not in Delhi. It is pertinent to note that a perusal of the CDR reveals a call was received at around 8 PM and the duration of the call was one minute.
18. The chargesheet additionally states that the CDR of the Petitioner places him at the location of the scene of crime. Further, the statement of Anil Pal under Section 161 Cr.P.C. dated 05.03.2020ascertains that the Petitioner was in front of Rajdhani Public School, raising slogans against Hindus and provoking a crowd of Muslim boys. It states that the Petitioner was involved in pelting stones and setting fire to the shops. A statement under Section 161 Cr.P.C. dated 06.03.2020 of Chhidda Lal Tomar states that the Petitioner was a part of the mob, and had set fire to all the shops and houses of Hindus. The chargesheet further notes that the statements of eyewitnesses Ankit Pal and Amit Pal under Section 161 Cr.P.C. also reveal that the Petitioner was involved in the riots, arson, provoking the crowd and raising communal slogans.
19. In the instant case, the issue which arises for consideration is that when an offence of murder is committed by an unlawful assembly, then whether each person in the unlawful assembly should be denied the benefit of bail, regardless of his role in the unlawful assembly or the object of the unlawful assembly. In order to understand this, it is useful to refer to Section 149 IPC which reads as follows:
20. The Supreme Court has consistently held that in order to convict an accused with the aid of Section 149, a clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was present or armed would not be sufficient to prove common object.
21. In Kuldip Yadav and Ors. v. State of Bihar, (2011) 5 SCC 324, the Supreme Court has categorically stated:
22. In Sherey and Ors. v. State of U.P., (1991) Supp (2) SCC 437, the Supreme Court considered as to whether Section 149 of the IPC could be applied to hold an accused constructively liable on the basis of omnibus allegations made by witnesses and on the basis of their mere presence at the spot/scene of crime.
23. It is, therefore, noted that the applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations. When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object. There cannot be an umbrella assumption of guilt on behalf of every accused by the Court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter therein. This principle, therefore, gains utmost importance when the Court considers the question of grant or denial of bail. The submission of the learned APP in this regard, thus, does not hold water.
24. With regard to the submission that if there appears to be reasonable grounds that the accused has committed an offence which is punishable with death or life imprisonment, then there is a bar imposed by Section 437(1) Cr.P.C on granting of bail, this Court states that the case of Gurcharan Singh(supra) also acknowledges that it is the Court which has the last say on whether there exists any reasonable grounds for believing that the accused is guilty of committing the said offence. Furthermore, there is no blanket bar as such which is imposed on the Court on granting of bail in such cases and that the Court can exercise discretion in releasing the accused, as long as reasons are recorded which clearly disclose how the discretion has been exercised. Additionally, in the case of the Prabhakar Tiwari v. State of U.P., (2020) SCCOnline 75, the Supreme Court has held that despite the alleged offence being grave and serious, and there being several criminal cases pending against the accused, these factors by themselves cannot be the basis for the refusal of prayer for bail.
25. In the case of Gurcharan Singh (supra), the Supreme Court had held as follows: “24. Section 439(1), Cr.P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment of life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Cr.P.C. of the new Code. The overriding considerations in granting of bail to which we adverted to earlier and which are common both in the case of Section 43791) and Section 439(1), Cr.P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the caseas well as its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.”
26. The Petitioner was arrested on 19.03.2020 and has been in judicial custody since then. It has been 22 months since the arrest of the Petitioner. Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring social security remains intact. It is the intricate balance between securing the personal liberty of an individual and ensuring that this liberty does not lead to an eventual disturbance of public order. It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Therefore, the Court, while deciding an application for grant of bail, must traverse this intricate path very carefully and thus take multiple factors into consideration before arriving at a reasoned order whereby it grants or rejects bail.
27. In this context, the submissions of the learned APP that co-accused Ashraf Ali was denied bail by way of an Order of this Court dated 14.10.2020 and that the duration of incarceration is not relevant while considering an application for grant of bail cannot be countenanced. In the case of Union of India v. K.A. Najeeb, (Criminal Appeal No. 98 of 2021), the Supreme Court had upheld an Order granting bail to a person accused of offences under the Unlawful Activities (Prevention) Act, 1967, on the ground that though charges levelled against the accused were grave and serious, however, the length of the period spent in custody and the unlikelihood of the trial concluding soon outweighed the seriousness of the charges. Relevant portion of the Order in Union of India v. K.A. Najeeb(supra)reads as under:
28. In Union of India v. K.A. Najeeb (supra), the Supreme Court had further observed that once it was made obvious that a timely trial would not be possible and that the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail. Similar stands have been taken by the Supreme Court in Sagar Tatyaram Gorkhe v. State of Maharashtra, [SLP (Crl.) No. 6888/2015] and Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, (1994) 6 SCC 73) wherein the Supreme Court has emphasised the importance of the principle of personal liberty enshrined under Article 21 of the Constitution of India and noted that no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter.
29. In the aforementioned judgements, bail was granted to the accused therein on the ground that the accused had been in custody for a prolonged duration of time. It was done despite the stringency of the provisions pertaining to grant of bail in the statutes which had been invoked in those matters.
30. The Order of this Court rejecting bail to co-accused Ashraf Ali in BAIL APPLN. 2614/2020 was pronounced on 04.10.2020 when the matter was at its initial stages. More than a year has passed since then and trial in the matter is yet to commence. It can, therefore, be said that the Petitioner herein has suffered incarceration for a significant period of time and that the precedential value of the Order dated 04.10.2020 will not apply in the case herein. With these facts and circumstances, the judgement in Union of India v. K.A. Najeeb (supra) applies to the instant case.
31. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Supreme Court laid down the parameters for granting or refusing the grant of bail which are as under: “i. whether there is any prima facie or reasonable ground tobelieve that the accused had committed the offence; ii. nature and gravity of the accusation; iii. severity of the punishment in the event of conviction; iv. Danger of the accused absconding or fleeting, if released on bail; v. character, behavior, 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.”
32. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the Supreme Court had observed as under:
33. It is the Constitutional duty of the Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess of State power. Bail is the rule and jail is the exception, and Courts must exercise their jurisdiction to uphold the tenets of personal liberty, subject to rightful regulation of the same by validly enacted legislation. The Supreme Court has time and again held that Courts need to be alive to both ends of the spectrum, i.e. the duty of the Courts to ensure proper enforcement of criminal law, and the duty of the Courts to ensure that the law does not become a tool for targeted harassment.
34. As has been stated above, the Petitioner herein has been in custody for 22 months and was formally added by way of chargesheet dated 04.06.2020. A perusal of the material on record has revealed to the Court that the sole evidence that is available at this juncture against the Petitioner are the statements of Amit Pal, Ankit Pal, Anil Pal and Chhidda Lal Tomar, and the CDR which places the Petitioner at the SOC. However, the authenticity of all of these materials are to be tested during the course of trial and cannot form the basis for the prolonged incarceration of the Petitioner. Further, the case of the Petitioner herein is similar to the case of the co-accused Rashid @ Monu who was granted bail by this Court vide Order dated 24.04.2021, and therefore, the Petitioner herein deserves to be enlarged on bail on the ground of parity.
35. The material on record discloses that the deceased received a phone call after 8:00 PM and the call detail record indicates that the phone call had been picked up and lasted for a minute. This Court, therefore, can infer that the deceased was probably alive at that point of time. Further, the CDR of the petitioner shows that the petitioner was at the scene of crime only around 4:00 PM. Taking this into account, this Court is of the opinion that it would be too much of a stretch to state that the petitioner was present at the SoC when the alleged murder was committed after a gap of almost six hours between the petitioner's presence at the SoC and the deceased's alleged time of death. Therefore, the petitioner's presence at the SoC is inconclusive at this juncture and can only be confirmed during the course of trial and cannot justify the prolonged incarceration of the petitioner at this point of time.
36. The chargesheet and the supplementary chargesheet have already been filed. The chargesheet indicates that there are currently 72 witnesses who need to be examined and, therefore, trial in the matter is likely to take a long time. This Court is of the opinion that it would not be prudent to keep the Petitioner behind bars for an undefined period of time at this stage. The Petitioner has roots in society, and, therefore, there is no danger of him absconding and fleeing.
37. In view of the facts and circumstances of the cases, without commenting on the merits of the matter, this Court is of the opinion that the Petitioner cannot be made to languish behind bars for a longer period of time, and that the veracity of the allegations levelled against him can be tested during trial.
38. Accordingly, this Court is inclined to grant bail to the Petitioner in FIR No. 39/2020 dated 28.02.2020 registered at P.S. Gokalpuri for offences under Sections 144/147/148/149/188/153A/302/201/427/436/120-B/34 of the IPC on the following conditions: a) The Petitioner shall furnish a personal bond in the sum of ₹35,000/- with one surety of the like amount to the satisfaction of the Trial Court/Duty Magistrate. b) The Petitioner shall not leave NCT of Delhi without prior permission of this Court. c) The petitioner shall attend all the proceedings before the Trial Court. d) The Petitioner shall report to the concerned Police Station every Tuesday, Thursday and Saturday at 10:30 AM and should be released after completing the formalities within an hour. e) The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. f) The Petitioner has given his address in the memo of parties as House No. A-30/6,Gali No.1, Mahalaxmi Enclave, Babu Nagar, Delhi. The Petitioner is directed to continue to reside at the same address. In case there is any change in the address, the Petitioner is directed to intimate the same to the IO. g) The Petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses. h) Violation of any of these conditions will result in the cancellation of the bail given to the petitioner.
39. It is made clear that the observations made in this Order are only for the purpose of grant of bail and cannot be taken into consideration during the trial.
40. Accordingly, the bail application is disposed of along with the pending application(s), if any.
SUBRAMONIUM PRASAD, J. JANUARY 18, 2022 Rahul