Delhi High Court
Mohd Anwar vs State on 4 August, 2020
via Video-conferencing
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* IN THE HIGH COURT OF DELHI AT NEW 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
J U D G M E N T
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.
______________________________________________________________________________________
2. The applicant is also accused in the following other cases:
S. Date of FIR FIR No. Sections Police
No. 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.
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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)
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(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:
(extract from the record)
______________________________________________________________________________________
(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/petrol-
filled 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:
(extract from the record)
______________________________________________________________________________________
(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 petrol-
filled 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:
______________________________________________________________________________________
(extract from the record)
(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;
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(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
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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 :
(2012) 9 SCC 446
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"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
(2002) 3 SCC 598
(2004) 7 SCC 525
______________________________________________________________________________________
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."
(2009) 14 SCC 286
(2010) 14 SCC 496
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*****
"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 India6 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."
(emphasis supplied)
17. In Ashok Sagar vs. State7 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
(2000) 3 SCC 409
2018 SCC OnLine Del 9548
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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."
(emphasis supplied)
18. In a recent decision in Sanjay Chandra vs. CBI8 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
(2012) 1 SCC 40
______________________________________________________________________________________
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
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not be balancing the constitutional rights but rather "recalibrating
the scales of justice"."
*****
"46. We are conscious of the fact that the accused are charged with
economic offences of huge magnitude. We are also conscious of the
fact that the offences alleged, if proved, may jeopardise the economy
of the country. At the same time, we cannot lose sight of the fact that
the investigating agency has already completed investigation and
the charge-sheet is already filed before the Special Judge, CBI, New
Delhi. Therefore, their presence in the custody may not be necessary
for further investigation. We are of the view that the appellants are
entitled to the grant of bail pending trial on stringent conditions in
order to ally the apprehension expressed by CBI."
(emphasis supplied)
19. Most recently, in P. Chidambaram vs. CBI9 the Supreme Court
has held :
"22. The jurisdiction to grant bail has to be exercised on the basis of
the well-settled principles having regard to the facts and
circumstances of each case. The following factors are to be taken
into consideration while considering an application for bail:- (i) the
nature of accusation and the severity of the punishment in the case
of conviction and the nature of the materials relied upon by the
prosecution; (ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his abscondence; (iv)
character behaviour and standing of the accused and the
circumstances which are peculiar to the accused; (v) larger interest
of the public or the State and similar other considerations (vide
Prahlad Singh Bhati v. NCT, Delhi). There is no hard and fast rule
regarding grant or refusal to grant bail. Each case has to be
considered on the facts and circumstances of each case and on its
own merits. The discretion of the court has to be exercised
judiciously and not in an arbitrary manner. ....."
2019 SCC OnLine SC 1380
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*****
"33. The appellant is not a "flight risk" and in view of the
conditions imposed, there is no possibility of his abscondence from
the trial. Statement of the prosecution that the appellant has
influenced the witnesses and there is likelihood of his further
influencing the witnesses cannot be the ground to deny bail to the
appellant particularly, when there is no such whisper in the six
remand applications filed by the prosecution. The charge sheet has
been filed against the appellant and other co-accused on 18.10.2019.
The appellant is in custody from 21.08.2019 for about two months.
The co-accused were already granted bail. The appellant is said to
be aged 74 years and is also said to be suffering from age related
health problems. Considering the above factors and the facts and
circumstances of the case, we are of the view that the appellant is
entitled to be granted bail."
(emphasis supplied)
20. Furthermore in P. Chidambaram vs. Directorate of
Enforcement 10 , the Supreme Court has explained the concept and
application of 'gravity' of an offence in the following way :
"12. .... The gravity can only beget the length of sentence
provided in law and by asserting that the offence is grave, the
grant of bail cannot be thwarted. The respondent cannot contend
as if the appellant should remain in custody till the trial is over."
(emphasis supplied)
21. Another aspect which deserves attention is the effect that pre-
trial detention has on an accused, especially on his right to brief and
consult his lawyers and to prepare his defence, in order to afford to
2019 SCC OnLine SC 1549
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the accused a real and not merely chimerical right to fair trial, as
guaranteed under Article 21 of the Constitution.
22. Commenting on the consequences of pre-trial detention, in Moti
Ram vs. State of M.P.11 the Supreme Court said :
"14. The consequences of pre-trial detention are grave. Defendants
presumed innocent are subjected to the psychological and physical
deprivations of jail life, usually under more onerous conditions than
are imposed on convicted defendants. The jailed defendant loses his
job if he has one and is prevented from contributing to the
preparation of his defence. Equally important, the burden of his
detention frequently falls heavily on the innocent members of his
family."
(emphasis supplied)
23. In Babu Singh vs. State of U.P.12 the Supreme Court observed :
"18. We must weigh the contrary factors to answer the test of
reasonableness, subject to the need for securing the presence of the
bail applicant. It makes sense to assume that a man on bail has a
better chance to prepare or present his case than one remanded in
custody. And if public justice is to be promoted, mechanical
detention should be demoted. ......... The considerable public expense
in keeping in custody where no danger of disappearance or
disturbance can arise, is not a negligible consideration. Equally
important is the deplorable condition, verging on the inhuman, of
our sub-jails, that the unrewarding cruelty and expensive custody of
avoidable incarceration makes refusal of bail unreasonable and a
policy favouring release justly sensible."
(emphasis supplied)
(1978) 4 SCC 47
(1978) 1 SCC 579
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24. On a prima-facie appreciation of the factual matrix of the
present case, the following position emerges :
(a) The FIR in this case was registered on 04.03.2020 after
10 days of the alleged incident of 24.02.2020;
(b) As per complaint dated 04.03.2020, complainant Mohd.
Shanawaz says that although he tried to call the police on
24.02.2020 at 4:15 pm, the police phones were engaged
and he could not reach them; by reason of which he ran
away from the spot to save his life. Contrarily however,
Ct. Vikas in his statement dated 05.03.2020 says that he
was present at the spot and therefore identifies inter alia
the applicant Mohd. Anwar as being one of the rioters.
In fact in his statement of 05.03.2020 the Constable
further says that he, alongwith other members of the
police staff, tried to reason with the crowd but without
success. These statements ex-facie contradict each other.
Their evidentiary and probative value is of course to be
considered during trial;
(c) Ct. Vikas in his statement dated 05.03.2020 also states
that there were about 1500-2000 people in the crowd that
indulged in rioting and arson, from amongst whom he
identified only two persons, namely Firoz Khan and
Mohd. Anwar;
(d) The offences alleged arise in the context of an 'unlawful
assembly', which section 141 IPC defines as an assembly
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of 05 or more persons. However, only 02 persons,
namely Firoz Khan and Mohd. Anwar, have so far been
named in the case. Whether at the trial the prosecution is
able to bring home the offences premised on the
applicant being part of an unlawful assembly, is another
aspect which cannot be pre-judged against the applicant
at this stage. It will be for the State to first show the
presence of other persons, whether named or unnamed,
who were part of and involved in the offences as an
unlawful assembly. Until the State shows that, it cannot
be presumed that the applicant was part of such
assembly;
(e) Even though the applicant denies that he is the person
seen in the white shirt in the snapshots filed in the present
proceedings, even assuming it is him, it appears that the
applicant is neither carrying a wooden stick nor an iron
rod nor a petrol-filled bottle and his hands appear to be
empty;
(f) The State says that since most CCTV cameras around the
complainant's shop were damaged and burnt by rioters,
CCTV footage dated 24.02.2020 is from one Rajdhani
Public School in Mahalaxmi Enclave, which footage was
seized in FIR No. 111/2020; and in which, according to
the State, the applicant is clearly seen actively
participating in and instigating others during the riots.
Seeing the distance between Rajdhani Public School,
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Mahalaxmi Enclave and the complainant's shop at
property No. A-126A, Mahalaxmi Enclave on Google
Maps, which identifies the school and property No. A-
126 (though not A-126A), it appears that the shop and the
school are about 400 metres and a 5-minute walk apart,
but on two different sides of a turn in the road. While not
prejudging the issue, it seems unlikely though that CCTV
cameras installed at the school would be able to view the
complainant's shop;
(g) Insofar as the CDRs are concerned, with its status report
dated 23.07.2020 the State has enclosed scanned as well
true-typed copies of the applicant's CDRs, in which, the
relevant point of time i.e. around 4:00 p.m on 24.02.2020
falls between two entries at 15:21:39 hours and 16:44:30
hours. At 15:21 hours the applicant's cellphone location
is shown at "Nawab Marriage Home, Tirpal Factory,
Main Brijpuri Road, Mustafabad, New Delhi" and at
16:44 hours it is shown at "Part of Khasra No. 53/9,
Village Karawal Nagar, Old Mustafabad, Mohalla-
Dilshad, Shahdara, Delhi-94". The complainant's shop is
stated to at No.27, property No.A-126A, Mahalaxmi
Enclave, Shiv Vihar Crossing. Without observing
anything further at this stage, and going only by the
State's own records, it remains to be proved whether the
applicant's cellphone, and therefore the applicant, were
in or around the complainant's shop. It is notable that the
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CDRs relied upon by the State show the applicant's
location through the night of 24.02.2020, i.e. between
00:10 hours and 09:08 hours on 25.02.2020, at "Part of
Khasra No. 53/9, Village Karawal Nagar, Old
Mustafabad, Mohalla-Dilshad, Shahdara, Delhi-94";
which could therefore well be the cell-tower that catches
his cellphone location while he is at home. Furthermore,
the applicant's cellphone location throughout the period
15.02.2020 to 27.02.2020, that is the period for which
CDRs have been filed with status report dated
20.07.2020, is found to be in the same area namely
Mustafabad/Old Mustafabad; and therefore prima-facie
there is nothing sinister about the applicant being present
in that area on 24.02.2020;
(h) Investigation in the present FIR is complete and charge-
sheet dated 01.07.2020 has already been filed; and
(i) The applicant has already been admitted to bail by the
learned Sessions Court in FIR No.111/2020 vidé order
dated 13.05.2020 and in FIR No.112/2020 vidé order
dated 19.05.2020.
25. Furthermore, it is pointed-out that co-accused Firoz Khan has
already been admitted to regular bail by judgment dated 29.05.2020 in
Bail Appl. No.945/2020.
26. Upon a conspectus of the facts and circumstances as discussed
above, and applying the law and principles of bail as set-out in the
afore-cited precedents, this court is persuaded to admit the applicant
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to regular bail in case FIR No.105/2020, subject to the following
conditions:
(a) The applicant shall furnish a personal bond in the sum of
Rs.50,000/- with 02 sureties of the like amount from
blood-relatives, to the satisfaction of the Trial Court;
(b) The applicant shall not leave the National Capital Region
(NCR) without permission of the court and shall ordinarily
reside in his place of residence as per prison records;
(c) Till such time as cognisance is taken and the applicant is
summonsed by the Trial Court, the applicant shall present
himself on every alternate Saturday between 11 am and
11:30 am before the Investigating Officer, and in case the
Investigating Officer is not available, then before the SHO
PS : Dayalpur, New Delhi to mark his presence. It is made
clear that the applicant shall not be kept waiting for longer
than an hour at the police station for this purpose;
(d) The applicant shall furnish to the Investigating
Officer/SHO a cellphone number on which the applicant
may be contacted at any time and shall ensure that the
number is kept active and switched-on at all times ;
(e) If the applicant has a passport, he shall surrender the same
to the Trial Court;
(f) The applicant shall not contact, nor visit, nor offer any
inducement, threat or promise to the first
informant/complainant or to any of the prosecution
witnesses. The applicant shall not tamper with evidence or
otherwise indulge in any act or omission that is unlawful
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or that would prejudice the proceedings in the pending
matter.
27. Nothing in this judgment is to be taken as an expression of
opinion on the merits of the evidence in the matter. It is also clarified
that the observations in this judgment shall have no bearing on the
cases against other accused persons in any connected matters, which
cases shall be considered on their own merits.
28. The bail application is allowed in the above terms; and the
applicant is directed to be released subject to the above conditions, if
not required in any other case.
29. The application stands disposed of in the above terms.
30. Other pending applications, if any, also stand disposed of.
31. A copy of this order be sent to the concerned Jail
Superintendent.
ANUP JAIRAM BHAMBHANI, J.
th
04 August, 2020
Ne
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