Mohd. Anwar v. The State of (NCT) Delhi

Delhi High Court · 04 Aug 2020 · 2020:DHC:2450

Anup Jairam Bhambhani

Bail Appl. 1231/2020

2020:DHC:2450

criminal appeal_dismissed Significant

AI Summary

The Delhi High Court dismissed the bail application of Mohd. Anwar in a rioting and arson case, holding that prima facie evidence justified continued judicial custody.

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______________________________________________________________________________________
Bail Appl. 1231/2020 via Video-conferencing HIGH COURT OF DELHI
Date of Decision: 04th August, 2020

BAIL APPL. 1231/2020
MOHD. ANWAR ..... Petitioner/Applicant
Through: Mr. Muhammad Arif, Advocate.

VERSUS

THE STATE OF (NCT) DELHI .... Respondent
Through: Mr. Amit Prasad, SPP and Mr. Tarang Srivastava, APP for the State.

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

JUDGMENT

ANUP JAIRAM BHAMBHANI, J.

The applicant Mohd. Anwar is an accused in case FIR
No.105/2020 dated 04.03.2020 registered under sections
147/148/149/427/436 of the Indian Penal Code, 1860 at PS: Dayalpur, Delhi. It must be mentioned at the outset that the applicant was first arrested in a different case bearing FIR No.111/2020 dated
04.03.2020; and was subsequently formally arrested in the present case. The applicant has been in judicial custody from the date of his arrest in the other case on 03.04.2020 till date.
2020:DHC:2450 ______________________________________________________________________________________

2. The applicant is also accused in the following other cases:

S. No. Date of FIR FIR No. Sections Police Station

1. 04.03.2020 111/2020 147/148/149/427/436 IPC Dayalpur

2. 04.03.2020 112/2020 147/148/149/427/436 IPC Dayalpur

3. 04.03.2020 114/2020 147/148/149/427/436 IPC Dayalpur

4. 04.03.2020 130/2020 147/148/149/427/436 IPC Dayalpur

3. By way of the present application, the applicant seeks regular bail.

4. It is stated in the application that the applicant has already been granted bail in FIRs Nos.111/2020 and 112/2020 on 13.05.2020 and 19.05.2020 respectively, by the learned Sessions Court.

5. It is important to mention that the applicant is not named in the present FIR, which stands registered against unnamed accused persons.

6. The incident in respect of which the FIR came to be registered is alleged to have taken place on 24.02.2020, on which date, according to the police, a mob engaged in rioting and destruction of property in certain areas of North-East Delhi, during which the property of one Mohd. Shanawaz, being shop No.27, property No.A- 126A, Mahalaxmi Enclave, Shiv Vihar Crossing, Delhi was burnt down, whereupon he filed a complaint with the police on 04.03.2020 i.e. around 10 days after the incident.

7. Notice in this bail application was issued on 16.06.2020. Status reports dated 03.07.2020, 20.07.2020 and 23.07.2020 were filed by the State. Medical status report dated 30.06.2020 and nominal rolls dated 30.06.2020 and 07.07.2020 have also been received from the Jail Superintendent.

8. As gathered from the contents of the FIR, the status reports and from submissions made in the matter, the stand of the State is the following:

(i) that on 04.03.2020 complainant/Mohd. Shanawaz, who is stated to have a shop in Shiv Vihar, Delhi, made a written complaint to the Police Headquarters alleging inter alia that on 24.02.2020 at 4:15 pm a crowd of rioting persons burnt down his shop in front of his eyes; that he telephoned the police but since their phone-lines were busy, the complainant ran away from the spot to save his life. The relevant extract of complaint dated 04.03.2020 is as below: (extract from the record)

(ii) that on the basis of the complaint a rukka was prepared on 04.03.2020, based on which the FIR came to be registered;

(iii) that, according to the police, thereafter two other statements of the complainant were recorded. One was a supplementary statement dated ‘nil’ which, it was clarified during the course of the hearings, was recorded on 10.03.2020, in which the complainant says that Investigating Officer S.I. Rajeev Kumar visited and inspected the complainant’s shop on 10.03.2020; and drew a site-plan of the scene of crime on the complainant’s pointing-out; and that the complainant also accompanied the I.O. to look for the offenders but did not find anyone. It is further recorded in this statement that the complainant also gave to the I.O. photographs of his shop. The relevant portion of the statement is placed below:

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(iv) that thereafter another statement of the complainant, being supplementary statement dated 10.04.2020 was recorded, in which he said that on 24.02.2020 around 4:00 pm a group of rioters came from Shiv Vihar side armed with sticks, iron rods and petrol bombs/petrolfilled bottles, entered his shop, caused breakage and set it on fire. The statement further records that today i.e. 10.04.2020, the I.O. visited the shop and showed the complainant certain photos and videos on the I.O.’s cellphone, in which the complainant identified two persons who were involved in setting his shop on fire; and that the complainant would be able to identify other persons also if confronted. The relevant extract of the statement is as under:

(v) that in addition, a statement dated 05.03.2020 of Ct.

Vikas from PS: Dayalpur was also recorded, in which the Constable says that on 24.02.2020, on instructions of his superiors, he went to Shiv Vihar Junction and Mahalaxmi Enclave to control the rioting going-on there; that a crowd of around 1500-2000 people had gathered there, many of whom were carrying sticks, iron rods and petrolfilled bottles; that the crowd became riotous and around 4:00 pm they started burning down shops and vehicles. The Constable further says that he, alongwith other members of the police staff, tried to reason with the crowd but without success. Most pertinently, the Constable says that in the crowd there were some boys from the local area; from amongst whom he recognizes two boys who were from Mustafabad, namely Firoz Khan s/o Munan Khan and Mohd. Anwar s/o Mohd. Zahid Hussain (i.e. the applicant); and that he can also recognize the other boys if confronted. The Constable says that these boys were carrying petrol-filled bottles, and committed arson in the shops in Mahalaxmi Enclave and ran away thereafter. The relevant extract of the statement is as below:

(vi) that the State further relies on 02 photos, which are stated to be snapshots/screen-grabs of purported CCTV footage of 24.02.2020 at about 4:02 pm from one Rajdhani Public School, in which, according to the State, the applicant Mohd. Anwar is clearly seen in a white shirt. Copies of the snapshots have been filed on record. While counsel for the applicant disputes that the boy in the white shirt is indeed the applicant, it is noticed that in any case the applicant does not appear to be carrying either a stick or an iron rod or a petrol-filled bottle and that the applicant’s hands are empty;

(vii) that the State further relies upon call detail records

(CDRs) for the period from 15.02.2020 to 27.02.2020 purporting to relate to the applicant’s cellphone number 8882289495, to show that on the relevant date and time, i.e. 24.02.2020 at about 4.00 pm, the applicant’s cellphone was in the Old Mustafabad area, where the rioting happened.

9. It is on the basis of the aforesaid material that the State alleges that the applicant was one of the persons involved in arson and rioting; for which he was arrested and has been kept in judicial custody ever since.

10. Nominal rolls dated 30.06.2020 and 07.07.2020 show that the applicant is implicated in 04 other cases as set-out in the table above, all of which arose from the episodes of rioting that happened in North- East Delhi in February 2020. The applicant’s jail conduct is stated to be ‘satisfactory’. The applicant is stated to be in judicial custody since 03.04.2020 i.e. for about 03 months as of 07.07.2020.

11. As per status report dated 20.07.2020, after completing investigation in the case, charge-sheet has been filed on 01.07.2020.

12. Notably, in status report dated 03.07.2020, the State also says:

“6. That notice U/s 91 CrPC were given to the residents/shopkeepers of the area to provide the CCTV Footage of the said incident, although most of the CCTV Camera’s in the area were damaged and burnt by rioters. However, a video footage regarding the incident was found

in the mobile phone of accused itself. * * * * *

“8. That it is pertinent to mention here that during the course of investigation of the riot cases registered at PS Dayalpur, one CCTV footage dated 24.02.2020 of Rajdhani Public School, Mahalaxmi Enclave, was seized in Case FIR No.111/2020 Dated 04.03.2020 U/s 147/148/149/427/436 IPC PS Dayalpur, Delhi, wherein the above said applicant was clearly seen actively participating and instigating others during the riots. In the said CCTV footage, above said applicant/accused was clearly seen instigating other people and approaching towards the shop of the complainant at around 4:05 PM on 24.02.2020 and the complainant’s shop was damaged, looted and burnt at around 4:15 PM on 24.02.2020. The copy of the CCTV Footage is also enclosed as Annexure-B. ***** “11. That it is pertinent to mention here that at the time of arrest of accused Mohd. Anwar in case FIR No.111/2020, his mobile phone along with the Micro SD Card was recovered from his possession, which was taken into police possession through seizure memo on 02.04.2020. The said mobile and the Micro SD Card contained the videos of the incident, which were intentionally deleted by accused person Mohd. Anwar. The above said mobile phone has already been sent to Forensic Science Laboratory, Rohini for the extraction of deleted data of the mobile phone on 21.04.2020.” (emphasis supplied)

13. In the above factual matrix, counsel for the applicant submits that firstly, there is no credible evidence to identify the applicant from amongst the mob of rioters at the spot or at the complainant’s shop on 24.02.2020. Secondly, counsel submits that investigation in the matter is complete and charge-sheet stands filed; that the applicant has been in custody for more than 03 months; and there is no reason to detain him any longer; and the applicant therefore deserves to be enlarged on regular bail.

14. Mr. Amit Prasad, learned SPP and Mr. Tarang Srivastava, learned APP on the other hand oppose grant of bail, submitting that the applicant’s identity and presence stands confirmed by the snapshot/video-grabs of the CCTV footage from Rajdhani Public School as well as from the applicant’s own cellphone; that the applicant’s CDRs also confirm his location at the scene of the crime at the relevant time; that the complainant’s statements also point to the involvement of the applicant; and that in his statement Ct. Vikas has in fact identified the applicant.

15. A brief conspectus of the fundamental principles of bail would be in place at this stage. Extracts from some of the most relevant and topical judgements on this point are set-out in the paragraphs that follow.

16. Outlining the considerations for grant or refusal of bail, in Ash Mohammad vs. Shiv Raj Singh & Anr.[1] the Supreme Court expressed itself as follows:

“8. In Ram Govind Upadhyay v. Sudarshan Singh2, it has been opined

that the grant of bail though involves exercise of discretionary power of

the Court, such exercise of discretion has to be made in a judicious

manner and not as a matter of course. The heinous nature of the crime

warrants more caution and there is greater chance of rejection of bail,

though, however dependent on the factual matrix of the matter. In the

said case the learned Judges referred to the decision in Prahlad Singh

Bhati v. NCT, Delhi and stated as follows: (Ram Govind case, SCC p.

602, para 4)

“(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” “9. In Chaman Lal v. State of U.P.3 this Court while dealing with an application for bail has stated that certain factors are to be considered for grant of bail, they are: (SCC p. 525) “… (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or

apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.”

“10. In Masroor v. State of U.P.4, while giving emphasis to ascribing

reasons for granting of bail, however, brief it may be, a two-Judge

Bench observed that: (SCC p. 290, para 15)

“15. There is no denying the fact that the liberty of an individual

is precious and is to be zealously protected by the courts.

Nonetheless, such a protection cannot be absolute in every

situation. The valuable right of liberty of an individual and the

interest of the society in general has to be balanced. Liberty of a

person accused of an offence would depend upon the exigencies

of the case.”

“11. In Prasanta Kumar Sarkar v. Ashis Chatterjee 5 it has been

observed that (SCC p. 499, para 9) normally this Court does not

interfere with an order passed by the High Court granting or rejecting

the bail of the accused, however, it is equally incumbent upon the High

Court to exercise its discretion judiciously, cautiously and strictly in

compliance with the basic principles laid down in a plethora of

decisions of this Court on the point.

“9. … among other circumstances, the factors which are to be

borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe 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 fleeing, if released on bail;

(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.”

* * * * * “20. Having said about the sanctity of liberty and the restrictions imposed by law and the necessity of collective security, we may proceed to state as to what is the connotative concept of bail. In Halsbury's Laws of England it has been stated thus: “166. Effect of bail.—The effect of granting bail is not to set the defendant (accused) at liberty, but to release him from the custody of the law and to entrust him to the custody of his sureties, who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law, and he will then be imprisoned….” “21. In Sunil Fulchand Shah v. Union of India[6] Dr A.S. Anand, learned Chief Justice, in his concurring opinion, observed: (SCC pp. 429-30, para 24) “24. … Bail is well understood in criminal jurisprudence and Chapter 33 of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is surety.”

17. In Ashok Sagar vs. State[7] the Delhi High Court has said this:

“35. Authorities on bail, and the jurisprudence relating thereto, are in overabundance, and it is hardly necessary to multiply references thereto. The principles governing exercise of judicial discretion in such cases, appear, however, to be well-settled. The following

2018 SCC OnLine Del 9548 principles may immediately be discerned, from the aforementioned authorities: * * * * * “(ii) While examining the issue, courts are not to presume that the accused would flee justice, were he to be released, and search for evidence indicating to the contrary. Logistically, every accused, who is released during trial, has the potentiality of fleeing. Were this potentiality to be allowed to influence the mind of the court, no accused would be entitled to bail. * * * * * “(iv) Given this legal position, the nature of the offence committed necessarily has a limited role to play, while examining the merits of an application for bail. This is for a simple reason that the application being examined by the court is not for suspension of sentence, but for release during trial. If the court were to allow itself to be unduly influenced by the nature of the charges against the accused, and the seriousness of the crime alleged to have been committed by him, it would result in obliterating the distinction between grant of bail and suspension of sentence. Inasmuch as the applicant, in a bail application, has yet to be found guilty of the offence with which he is charged, the significance of the nature of the offence stand substantially reduced, while examining the application for bail. Courts have to be alive to the legal position – underscored in the very first paragraph of Dataram Singh (supra) - that every accused is presumed to be innocent until proved guilty.”

18. In a recent decision in Sanjay Chandra vs. CBI[8] the Supreme Court has held that:

“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to

ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. “22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. “23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. “24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would

Mohd. Anwar v. The State of (NCT) Delhi

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