Mohd Saleem Khan v. State of NCT of Delhi

16. Mr. Amit Prasad, learned SPP for the State, has painstakingly taken this Court through the videos pertaining to the topography of the area where the incidents had occurred. Mr. Prasad brought to the attention of the Court three videos that had been found during the course of investigation which depict the scene of crime - Vishal Chaudhry Video (1.48 minutes) shot from Gym Body Fit Garage, Skyride Video (1.37 minutes) and Yamuna Vihar Video (40 seconds), and has submitted that the three videos shed a light on how the assault on the police personnel was pre-meditated. The learned SPP has further taken this Court through all the available CCTV footage displaying timestamps and respective galis (lanes) wherein the accused have been caught on camera. He has further pointed out the timestamps which showcase the dislocation and deactivation of the CCTV cameras and has submitted that the same has been done in a synchronised and planned manner.

17. Mr. Prasad has submitted to this Court that the Petitioner herein, who was wearing a white shirt, black coat and black pants, was identified on GNCTD Camera ID No.7033172 installed at F 71 Chand Bagh at 12:07:10PM wherein he is seen turning away the CCTV camera with the aid of a wiper. The Petitioner was further identified on Camera ID No.7033161 installed at E[2] 56 Chand Bagh at 11:48:24 PM where he can be seen inciting and provoking the public to join the protest. Mr. Prasad contends that the CCTV cameras were made un-functional and their directions were changed only to facilitate the mob to reach the Scene of Crime. He contends that the incident was a well planned conspiracy and the petitioner was a part of that conspiracy which is evident from the fact that the petitioner turned the CCTV camera away from the gully.

18. The learned SPP for the State has submitted that the Petitioner is one of the main conspirators who played a vital role in instigating the protestors at the the Chand Bagh protest site. It has been stated that he is a garments exporter and he is an influential person in the community. It has been stated that there are police witnesses and independent witnesses who have identified the Petitioner, and the independent witnesses have revealed in their statements under Section 164 Cr.P.C. that he was one of the organisers of the protest site and instigated the crowd. It has been submitted to the Court that the CDR of the Petitioner has revealed that he was in touch with the other co-accused.

19. The learned ASG Shri SV Raju, opposing the Bail Application herein, has submitted that the instant case is regarding the brutal assault on police officials wherein HC Ratan Lal succumbed to his injuries, and DCP Shahdara Amit Sharma and ACP Gokalpuri suffered grievous injuries along with more than 50 police officials also getting injured.

20. It has been submitted that the death of HC Ratan Lal was the first death in the North-East Delhi riots, and that the Trial Court has been dealing with the riot cases since then. It has also been submitted that the Trial Court has been apprised of the matter and has already dismissed the bail application of the Petitioner herein, and that the order of rejection of bail does not contain any legal infirmities.

21. The learned ASG has iterated that on 23.02.2020, the protestors who were convened at Wazirabad Main Road, Chand Bagh, unauthorizedly came onto the road and blocked the same. He submitted that in response to the same, the local police had issued a proclamation under Section 144 of the Cr.P.C. in order to bring the law and order under control. He further submitted that the protestors, including the Petitioner herein, held a meeting on the night of 23.02.2020 at Chand Bagh to finalise a plan for 24.02.2020 as the President of the United States, Donald Trump, was coming to New Delhi. This meeting was also attended by several of the accused persons.

22. The learned ASG has submitted that on the morning on 24.02.2020, CCTV cameras which had been installed by GNCTD for security in the area were systematically disconnected or damaged or dislocated right from 08:00:41 AM to 12:50:57 PM. He argued before the Court that the protest at Chand Bagh continued despite the proclamation of Section 144 Cr.P.C. orders. As a consequence, police officials had been deployed for law and order arrangements. The learned ASG averred that between 12:30 PM and 1:00 PM, at the behest of the organisers of the protest, a crowd carrying various weapons such as dandas, lathis, baseball bats, iron rods, and stones convened at the main Wazirabad Road, and refused to pay heed to the orders of the senior officers and police force. The crowd soon got out of control and started pelting stones at the police officers and resultantly, more than fifty police personnel suffered injuries and HC Ratan Lal was shot dead. It was further submitted by the learned ASG that the protestors turned violent, burnt private and public vehicles, as well as other properties in the vicinity, including a petrol pump and a car showroom.

23. It was then submitted by the learned ASG that absence of an accused from a video does not translate into absence of the accused from the scene of crime. He has stated that identification of an accused in videography was a Herculean task, and therefore, if an accused has been identified, that would be a positive point. Additionally, he relied upon Masalti and Ors. v. State of Uttar Pradesh, (1964) 8 SCR 133, and submitted that by way of application of Section 149 IPC, the Petitioner herein would be deemed to be a member of the unlawful assembly and, therefore, would be equally and squarely liable for the crime committed. Furthermore, it has been submitted that the statements of the witnesses and CDR have revealed that the Petitioner would instigate the public and was in close contact with the organisers as well as miscreants at the Chand Bagh protest site. It has been submitted that the Petitioner played an important role and was also among the organisers who had participated in the first meeting which was held by DS Bindra and others. Additionally, the Petitioner’s brother Mohd. Yunus has also been arrested as a rioter.

24. The learned ASG has also contended that the addition of the offence under Section 302 IPC meant that ordinarily bail should not be granted. He has argued that it was not a case of a simple offence; if it was a grievous offence which was specially punishable with death, then bail could not be granted. On the issue of the parameters of bail, the learned ASG has submitted that in Gurcharan Singh v. State (Delhi Administration),(1978) 1 SCC 118, the Supreme Court has reiterated that the principle underlying Section 437 is towards grant of bail except in cases where there appears to be reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, and also when there are other valid reasons to justify refusal of bail. He has argued that the overriding considerations in granting bail are, inter alia, the nature and gravity of the circumstances in which the offence is committed. The learned ASG has submitted that in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791,the Supreme Court had held that in addition to the triple test or tripod test, gravity of the offence had to be considered while making a decision on grant of bail. Further, one of the circumstances to consider the gravity of offence would be the term of sentence that is prescribed for the offence which the accused is said to have committed. The learned ASG has argued that as the instant case pertains to the offence of murdering of a police officer and that Section 302 IPC has been invoked, the matter lies within the four corners of the gravest of grave offences, and therefore, the accused cannot be entitled to bail.

25. Mr. Raju, the learned ASG, has then contended that conspiracy had been established on 23 February, 2020, and that the offence was preplanned. He has submitted that meetings were held 1-2 days prior to the alleged incident wherein the protestors were motivated to gather at the site of the alleged incident on 24.02.2020 in order to instigate violence, and therefore, there was a meeting of minds due to which Section 149 and Section 120B of the IPC were made out. Furthermore, it has been submitted that the Petitioner herein, along with his associates and residents of Chand Bagh had planned to block the road and assault the police in case they tried to intervene. It has been stated that the Petitioner, along with others also visited the protest site carrying sticks, iron rods, petrol bombs, acid, stones, arms etc, and that hate speeches were being delivered since the morning of 24.02.2020.

26. It was also submitted by the learned ASG that there was only a small contingent of police officers present, and they were trying to protect themselves from the frontal attack by the crowd as they were heavily outnumbered. He argued that had it been a simple protest, the crowd would not have been required to come with sticks, weapons etc. Furthermore, if sticks and other weapons were to be utilised for self-defence, then the damage and dislocation of CCTVs defeated the case because such an action would only lead to the inference that the accused wished to destroy the evidence or to ensure that the evidence did not surface.

27. The Court has heard the learned ASG Shri SV Raju with Mr. Amit Prasad, learned SPP for the State, and Mr. Salman Khurshid, learned Senior Counsel for the Petitioner. The Court has also perused the material on record.

28. A perusal of the chargesheet indicates that the Petitioner is a resident of Chand Bagh who has a garments’ export business. It states that the Petitioner is a socially active person. The chargesheet states that messages had been circulated in the Muslim community that the Citizenship (Amendment) Act, 2019, was promulgated in order to strip off Muslims of their Indian citizenship. During the protest, DS Bindra, an advocate, started a community kitchen due to which a crowd would assemble, and that this crowd included the Petitioner herein, along with Salman Siddiqui, Dr. Rizwan, Salim Munna and others. The chargesheet states that Bindra instigated the Petitioner and others to oppose the Act and stressed that people should take to the streets to show their dissent. The chargesheet states that as a consequence, the Petitioner and his associates got tents, banners etc. It is stated in the chargesheet that on the day of the alleged incident, the Petitioner and his associates planned to block the road, and to assault the police in case they attempted to intervene.

29. A perusal of the video footage on record reveals that the Petitioner herein, who was wearing a white shirt, black coat and black pants, was identified on GNCTD Camera ID No.7033172 installed at F 71 Chand Bagh at 12:07:10 PM wherein he is seen turning away the CCTV camera with the aid of a wiper. The Petitioner was further identified on Camera ID No.7033161 installed at E[2] 56 Chand Bagh at 11:48:24 PM where he can be seen inciting and provoking the public to join the protest.

30. In the instant case, the issue which arises for consideration is whether a case for criminal conspiracy for an allegation of murder, i.e. Section 120B IPC read with Section 302, is made out against the Petitioner. In order to delve into the issue, it would be appropriate to reproduce Sections 120A and 120B IPC at this juncture: “120A. Definition of criminal conspiracy. –When two or more persons agree to do, or cause to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” “Section 120B. Punishment of criminal conspiracy. – (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to the criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”

31. For a criminal conspiracy to be established, there must be in existence two or more persons who agree to do, or cause to be done, an illegal act or an act which is not illegal by illegal means. The Explanation to Section 120A categorically notes that whether or not the illegal act is the ultimate object of the agreement, or is incidental to it, is completely immaterial. In Pratapbhai Hamirbhai Solanki v. State of Gujarat, (2013) 1 SCC 613, the Supreme Court had observed as follows:

32. In Ram Narayan Popli v. CBI, (2003) 3 SCC 641, the Supreme Court, while dealing with the question of conspiracy, laid down as follows:

33. Therefore, in order to contend the application of criminal conspiracy under Section 120-B and for an indictable offence to be accomplished, there is no requirement for an overt act to be done in furtherance of the conspiracy. It is the common design which gains utmost importance, and the conspiracy is held to be continued and renewed with regard to all its members wherever and whenever any member of the conspiracy acts in furtherance of this common design. There is also emphasis which is placed on the encouragement and support which co-conspirators render to such enterprises because in the absence of the same, accomplishing such a common design would otherwise be impossible. Furthermore, in order to discern the complicity of the accused, one needs to examine the circumstances before, during and after the occurrence.

34. 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. In Gurcharan Singh (supra), the Supreme Court observed as under:

35. The Petitioner was arrested on 11.03.2020 and has been in judicial custody since then. It has been 17 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 the 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.

36. 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.” In Mahipal v. Rajesh Kumar,(2020) 2 SCC 118, the Supreme Court had observed as under:

37. 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.

38. As has been stated above, the Petitioner herein has been in custody for 17 months and was added by way of chargesheet dated 08.06.2020. A perusal of the material on record has revealed to the Court that the video footage wherein the Petitioner is seen does not indicate whether the Petitioner was a part of the unlawful assembly at the SOC. While the Petitioner has clearly been identified in both Camera ID Nos. 7033172 and 7033161 wherein he is seen dislocating a CCTV camera and inciting the crowd, respectively. The fact that the petitioner was part of the conspiracy or not can be ascertained only after evidence is led. Even though Section 120-B IPC is prima facie applicable in the instant case and the usage of a wiper to turn away the CCTV camera implies that the Petitioner may have been in the know-how of the impending riots, the extent to which the charge can be added against the Petitioner cannot be deconstructed by this Court at this point and is a matter of trial. This Court is of the opinion that this footage in itself is not sufficient to prolong the incarceration of the Petitioner.

39. The veracity and the definitiveness statements of the police witnesses and the independent witnesses is not to be delved into by the Court at this juncture and are also a matter of trial. It is to be noted that no video recordings or audio recordings have been placed on record which can verify the contention that the Petitioner was embroiled in disseminating hate speech. The CDR of the Petitioner which reveals that the Petitioner was in touch with other co-accused is of no consequence at this point and its veracity is to be seen during trial. Furthermore, the co-accused of the Petitioner have been enlarged on bail vide Bail Appln. 1360/2021 dated 24.05.2021, Bail Appln. 3550/2021 dated 16.02.2021, Bail Appln. Nos. 2444/2021 and 1945/2021 dated 14.09.2021, and Bail Appln. Nos. 1882/2021, 2487/2021, 2775/2021, 2411/2021 and 774/2021 dated 03.09.2021.

40. 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.

41. Accordingly, this Court is inclined to grant bail to the Petitioner in FIR No. 60/2020 dated 25.02.2020 registered at PS Dayalpur for offences under Sections 186/353/332/323/147/148/149/336/427/302 of the IPC, read with Sections 3/4 of the PDPP Act, 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 report to the concerned Police Station every Wednesday and Friday at 10:30 AM and should be released after completing the formalities within half an hour. d) The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. e) The petitioner has given his address in the memo of parties as House No. F-75,Gali No. 3, Chand Bagh, 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. f) The Petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses. g) Violation of any of these conditions will result in the cancellation of the bail given to the Petitioner.

42. 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.

43. Accordingly, the bail application is disposed of along with the pending application(s), if any.

SUBRAMONIUM PRASAD, J. SEPTEMBER 27, 2021 Rahul