Mohd Arif v. State

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 APP 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 and black lowers, was identified on GNCTD Camera ID No.7033161 installed at E[2] 56 Chand Bagh at 11:45:15 AM wherein he was seen going towards the SOC. The Petitioner was further caught on Camera ID No.7033182 installed at F 150 Chand Bagh at 11:57:43 AM, and on Camera ID No.7033172 installed at F 71 Gali No.3 at 12:06:22 PM wherein he was seen hiding a danda. The learned SPP also played before the Court the Skyride video wherein it was shown that the Petitioner herein was present at the SOC.

18. Regarding the logo present on the Petitioner's shirt, the learned SPP has submitted that the appearance and disappearance of the logo is due to the quick movement of the individual and the reflection of light, and that, therefore, the arguments of the petitioner that the absence of logo fails to establish the presence of the petitioner does not hold water. He has stated that the usage of AMPED software based on digital recognition is sufficient to establish the correct individual.

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 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 subsequently 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 argued that the role of the accused could be discerned from the statement of Ct. Gyan who had identified the presence of the Petitioner in the CCTV footage. 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.

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, secret codes had been used, and the Petitioner herein was fully involved.

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. Tanveer Ahmad Mir, learned 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 and has participated actively in the protest against the Citizenship (Amendment) Act, 2019 (CAA), and the National Register of Citizens (NRC). The charge-sheet states that the petitioner had disclosed the names and roles of other accused in his disclosure statement, and had disclosed the names of those who shared the stage at the protest site wherein they allegedly delivered hate speeches and instigated the public to employ violent methods.

29. It is further stated in the charge-sheet that the petitioner was caught staring at the CCTV cameras installed at the corner of Gali No.3 immediately before changing its focus, and that he could also be seen damaging CCTV cameras. The charge-sheet also states that an analysis of the petitioner's mobile number has revealed that he was present at the scene of crime during the time of the incident. Furthermore, as per the chargesheet, his identity has been confirmed by the statements of Ct. Gyan, HC Sunil and Ct. Sunil on 27.02.2020, and the statement of HC Pranam Singh dated 13.04.2020.

30. A perusal of the video footage shows that the Petitioner was seen on the GNCTD Camera ID No.7033161 installed at E[2] 56 Chand Bagh at 11:45:15 AM wherein he was seen going towards the SOC. The Petitioner was further seen on the Camera ID No.7033182 installed at F 150 Chand Bagh at 11:57:43 AM, and on Camera ID No.7033172 installed at F 71 Gali No.3 at 12:06:22 PM wherein he was seen hiding a danda and then staring at the CCTV right before it was dislocated by a co-accused with a wiper.

31. It is also revealed from the video footage that though it has been contended that the petitioner was seen at the scene of crime as per the Skyride video at 0:22 seconds, his presence cannot be confirmed as the Petitioner is not clearly visible in the said footage and the clothes similar to that of the Petitioner have been adorned by multiple others which makes it difficult to distinguish the Petitioner in the video.

32. In the instant case, the issue which arises for consideration is whether 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 the contention of the learned ASG, it is useful to refer to Section 149 IPC which reads as follows:

33. 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 armed would not be sufficient to prove common object.

34. In Kuldip Yadav and Ors. v. State of Bihar, (2011) 5 SCC 324, the Supreme Court has categorically stated:

35. In Sherey and Ors. v. State of U.P., (1991) Supp (2) SCC 437, the Supreme Court, while considering a matter on merits after the conclusion of the trial and deciding 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, had observed as follows:

36. 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.

37. 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 in 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:

38. 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.

39. 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:

40. 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.

41. As has been stated above, the Petitioner herein has been in custody for 16 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 which placed the Petitioner at the Scene of Crime cannot be relied upon at this stage as the Petitioner is not explicitly visible in the same and the clothes similar to that of the Petitioner have been adorned by multiple others as well, and the CDR in the instant case of the Petitioner is inconclusive as the Petitioner is a resident of the local area, i.e. Gali No. 3. Additionally, the video footage in Camera ID 7033161, wherein it is alleged that the petitioner is seen going towards the SOC, cannot be taken into account at this juncture as only his back is visible in the said footage and the authenticity of the video will be a matter of trial. Furthermore, the authenticity of the video analysis conducted which identifies the Petitioner herein in multiple videos is also a matter of trial.

42. Whether the identification of the Petitioner by Ct. Gyan, HC Sunil and Ct. Sunil in statements under Section 161 Cr.P.C dated 27.02.2020, and by HC Pranam Singh by statement dated 13.04.2020 is enough to connect the Petitioner herein to the case is a matter of trial. It is also noted that the statement of HC Pranam Singh has been recorded after a considerable delay of two months. Furthermore, this Court is of the opinion that there is no evidence which has been placed on record which can corroborate the contention that the Petitioner had damaged CCTV cameras; merely being caught staring at a CCTV camera right before its dislocation by a co-accused cannot form the basis of this assumption.

43. The presence of the Petitioner in the video footage wherein he is hiding a danda also does not justify the continued incarceration of the Petitioner, and the authenticity of the same is not to be delved into at this point and is a matter of trial. The fourth chargesheet has already been filed, and 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. Furthermore, the two co-accused of the Petitioner have been enlarged on bail vide Bail Appln. 1360/2021 dated 24.05.2021, and Bail Appln. 3550/2021 dated 16.02.2021.

44. 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.

45. 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 186/353/332/323/147/148/149/336/427/302of the IPC, read with 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 Tuesday and Thursday 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-80, 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.

29. 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.

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

SUBRAMONIUM PRASAD, J. SEPTEMBER 03, 2021 Rahul