On 14th September, a bench of Delhi High Court consisting of Justice Subramonium Prasad while hearing a bail application reiterated that in order to convict an accused with the aid of Section 149 of the Criminal Procedure Code, a clear finding needs to be given by the Court regarding the nature of unlawful common object. The court also held that 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.

Facts of the case:

In the present case the petitioner sought bail in FIR No.60/2020 dated 25.02.2020 for offences under Sections 186/353/332/323/147/148/149/336/427/302of the Indian Penal Code, 1860 and Sections 3/4 of the Prevention of Damage to Public Property Act, 1984. It is stated in the instant FIR that the Complainant, i.e. Constable Sunil Kumar, was on duty with the deceased, HC Ratan Lal, and other.

Contention of the petitioner:

Mr. Dinesh Kumar Tiwari, learned Counsel appearing for the Petitioner, had submitted the following:

  1. It was submitted that the Petitioner herein had been falsely implicated in the instant FIR, and that there exists no evidence which can prove the connection of the Petitioner to the incident beyond reasonable doubt.
  2. It was also submitted that the evidence was fabricated, and therefore, cannot be admissible and therefore the Petitioner cannot be convicted on the basis of the available material.
  3. It was also submitted that the Petitioner states that the investigation has been completed and charge sheet has been filed, and therefore, the custody of the Petitioner is no longer required for the purpose of investigation.
  4. Furthermore, he has submitted that the Petitioner has no criminal history or previous convictions. It has also been stated that the Petitioner has no motive to commit a heinous offence.

Contention of the respondent:

The learned ASG Shri SV Raju, opposing the instant bail application, contended the following:

  1. It was 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.
  2.  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.
  3. He has 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.
  4. The learned ASG has also contended that the addition of the offence under Section 302 IPC meant that ordinarily bail should not be granted.

Observation and Judgement of the court:

The following observation has been made by the Hon’ble bench of the court:

  1. The applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations.
  2. 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.
  3. 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.
  4. 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.

Thus, the court held that in view of the facts and circumstances of the cases, the court held 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. Accordingly, the bail application was granted.

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