Tabassum v. State (NCT of Delhi)

16. The learned Counsel for the Petitioner has submitted that the allegations against the Petitioner are fabricated, and that there is no evidence which directly or indirectly links the Petitioner to the alleged incident, and that the material which has been placed on record at the most suggests that the Petitioner was present at the protest site in the capacity of a “volunteer”.

17. With regard to the statements of the witnesses recorded under Sections 161 and 164 Cr.P.C against the Petitioner, Mr. Gaffar has argued that the statements are inconsistent and contradict each other. He has submitted that the statement of Salman Khan @ Guddu refers to the Petitioner as a “responsible” person at the protest, and that the statement of Toukir Alam under Section 161 Cr.P.C. refers to the Petitioner as a “volunteer”, whereas his Section 164 Cr.P.C. statement conveys that the petitioner was responsible for looking after the stage. Taking the Court through various statements, the learned Counsel for the Petitioner submits that material does not support the contention of the prosecution that she was one of the main organisers and conspirators involved.

18. Mr. Gaffar also refutes the allegations that the Petitioner herein delivered hate speeches at the Chand Bagh protest site and submits that there is no material on record that supports this contention, and that none of the witnesses have provided any details of the said hate speeches that have been allegedly delivered by the Petitioner. He has further submitted that the statements of public witnesses Salman, Toukir Alam and Nazamul Hassan in this regard contradict each other. He has further submitted that while the statements of Nazamul Hassan refers to meetings that took place a few days prior to the alleged incident, the statement of Toukir Alam refer to a “secret meeting” held on the night of 23.02.2020. Furthermore, even as people this meeting have been named, there is no reference made to the Petitioner herein.

19. Mr. Amit Prasad, learned SPP for the State, has supplemented the arguments of the learned ASG and has painstakingly taken this Court through the videos pertaining to the topography of the area where the riots happened and the preparatory work that allegedly took place prior to the incident. 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.

20. The learned ASG Shri SV Raju, opposing the Bail Application, 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.

21. 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.

22. 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.

23. 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.

24. 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 can be discerned from the myriad statements that have been recorded under Section 161 and Section 164 of Cr.P.C. wherein the presence of the Petitioner at the Scene of Crime and her role as one of the main organisers has been identified as well as acknowledged. It has been submitted that the Petitioner was in constant touch with the main organiser-cum-conspirator, Suleiman Siddiqui and Ravish (declared PO), and that during the protests, she would deliver speeches to instigate the crowd to commit violence and that these speeches were circulated on social media. Furthermore, she would collect sticks, stones and rods in the tent with the other accused.

25. The learned ASG has submitted that the CDR reveals that the Petitioner was present at the SOC and was in contact with the other accused. Further, a number of ladies in burqas hitting the police officials with dandas and stones had been captured in the video taken by Vishal Choudhary. He has pointed out to the Court that the Petitioner was evading arrest, and a result of the same, from 28.08.2020 to 29.09.2020, a non-bailable warrant had been issued against the Petitioner, and from 30.09.2020 to 20.11.2020, a warrant had been issued under Section 82 Cr.P.C. Additionally, during police custody, she refused to cooperate with the investigation.

26. It has further been submitted by the learned ASG that the Petitioner was present at the meeting on the night of 23.02.2020 wherein the violence on 24.02.2020 was planned and that her presence had been confirmed by various independent public witnesses in their statements recorded under Section 164 Cr.P.C.

27. The learned ASG 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.

28. The learned ASG has also contended that the addition of the offence under Section 302 IPC means 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 the murder of a police officer and 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.

29. 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 as a main conspirator in the case.

30. 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 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.

31. The Court has heard the learned ASG SV Raju with Mr. Amit Prasad, learned SPP for the State, and Mr. Abdul Gaffar, learned Counsel for the Petitioner. The Court has also perused the material on record.

32. A perusal of the chargesheet reveals that the Petitioner herein is a resident of the Chand Bagh area, living in Gali No.1. It states that the Petitioner would share a stage with other protestors and instigate them to commit violence. Further, she was in constant touch with other main conspirators/co-accused, as well as the accused who have been arrested in FIR No. 59/2020 registered at PS Dayalpur. The chargesheet also indicates that the Petitioner also deliberately evaded the investigation, subsequent to which Non-Bailable Warrant was issued against her. Additionally, the Petitioner has been named in a myriad of statements of independent public witnesses and police witnesses recorded under Section 161 and Section 164 Cr.P.C.

33. 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: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” (emphasis supplied)

34. 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.

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

36. 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:

37. 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.

38. 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 an alleged offence being grave and serious, and there being several criminal cases pending against the accused, these factors by themselves cannot not be the basis for the refusal of prayer for bail. In Gurcharan Singh (supra), the Supreme Court had held as follows:

39. The Petitioner surrendered to the police on 03.10.2020 and has been in judicial custody since then. It has been 10 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.

40. 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:

41. 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.

42. As has been stated above, the Petitioner herein has been in custody for 10 months and was formally added by way of the third supplementary chargesheet dated 17.11.2020. A perusal of the material on record has revealed to the Court that the Petitioner has not been caught on any video footage in the vicinity of the protest site, and the contention of the prosecution that a few women wearing burqas have been caught assaulting police officials in the Vishal Chaudhary video does not have any weight at this juncture because the petitioner cannot be identified in the video. The CDR of the Petitioner which places her around the protest site and Scene of Crime is also inconclusive as the Petitioner is a resident of the local area, i.e. Gali No.1. Whether or not the statements of the independent public witnesses and the police officials recorded under Sections 161 and 164 Cr.P.C. are definitive, cannot be delved into by this Court and is a matter of trial. However, this Court is of the opinion that they are not sufficient to justify the continued incarceration of the Petitioner. Additionally, merely being one of the organisers of the protest as well as being in touch with others who participated in the protest is also not sufficient enough to justify the contention that the Petitioner was involved in the pre-planning of the alleged incident. It is to be noted that the right to protest and express dissent is a right which occupies a fundamental stature in a democratic polity, and therefore, the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right.

43. 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, who has two minor children, behind bars for an undefined period of time at this stage. The Petitioner has roots in society, and, therefore, there is no danger of her 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 25.02.2020registered at PS Dayalpur for offences u/s 186/353/332/323/109/144/147/148/149/153A/188/333/336/427/307/308/302 /201/120-B/34 of the IPC, read with 3/4 of the PDPP Acton 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 present address which has been given by the Petitioner is House No. D-51, Gali No. 1, 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