Delhi High Court
Rajik @ Sameer vs The State (Nct Of Delhi) on 4 September, 2020
Digitally Signed By:SINDHU
KRISHNAKUMAR
Signing Date:04.09.2020 22:35:05
$~3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th September, 2020
+ BAIL APPLN. 1192/2020 & CRL. M.A. 7443/2020
NAUSHAD ALI ..... Petitioner
Through: Mr. Jitender Kumar, Advocate.
versus
THE STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Raghuvinder Verma, APP.
Mr. Prakash Roy, SI, IO.
With
+ BAIL APPLN. 1806/2020 & CRL. M.A. 9609/2020
RAJIK @ SAMEER ..... Petitioner
Through: Mr. Jitender Kumar, Advocate.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Raghuvinder Verma, APP.
Mr. Prakash Roy, SI, IO.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been held through video conferencing.
CRL. M.A. 7444/2020 in BAIL APPLN. 1192/2020(exemption from
filing court fee and attested affidavits)
CRL. M.A. 9610/2020 in BAIL APPLN. 1806/2020(exemption from
filing court fee and attested affidavits)
2. These are applications seeking exemption from filing court fee and
duly attested affidavits. Binding the deponent of the affidavit to the contents
of the application, the exemption is granted. Insofar as the court fee is
Signature Not Verified
Digitally Signed
Signing Date:04.09.2020 21:40
Digitally Signed By:SINDHU
KRISHNAKUMAR
Signing Date:04.09.2020 22:35:05
concerned, the same be deposited within one week. Application are disposed
of. Registry to submit a report in case the court fees is not filed after a
month.
BAIL APPLN. 1192/2020
BAIL APPLN. 1806/2020
3. The present two cases arise out of FIR No.388/2019. The Petitioners
have been charged under Sections 302/201/120-B/34 IPC. The brief
background is that the deceased, Ms. Aafrin, had visited the residence of Mr.
Naushad Ali, who she is stated to be having a love affair with, and was
pressurizing to get married. Mr. Naushad Ali is accused of having used a
danda and hit Ms. Aafrin on her head. Assuming that she was dead, Mr.
Naushad Ali along with the other accused, Mr. [email protected], is accused of
having packed her in a jute bag and dumped her in a ganda nala.
Thereafter, a case was registered against both of them under Sections
302/201 IPC and they were taken into custody on 7th October, 2019.
4. Mr. Jitender Kumar, ld. counsel for the Petitioners, submits, with
respect to Mr. Naushad Ali's case, that a case of murder is not made out as
the deceased was conscious after she was hit and she passed away only after
the body was dumped into the ganda nala, as the post mortem report stated
the cause of death to be "asphyxia as a result of ante mortem drowning". He
relies upon the judgment in Palani Gaindan v. Emperor, (1919) ILR 42
Mad. 547 to argue that in such a situation, only a case under Section 308
IPC is made out and not one under Section 302 IPC.
5. Insofar as the other accused, Mr. [email protected], is concerned, it is
submitted that by the time Mr. [email protected] had arrived in his vehicle, the
deceased had already been hit and packed into the jute bag. It is thus
Signature Not Verified
Digitally Signed
Signing Date:04.09.2020 21:40
Digitally Signed By:SINDHU
KRISHNAKUMAR
Signing Date:04.09.2020 22:35:05
submitted that he had no role to play in the murder of the deceased.
6. On the other hand, Mr. Verma, ld. APP submits that both the accused
are equally guilty under Section 302 IPC. Insofar as Mr. [email protected]'s
case is concerned, ld. APP submits that the death may not have been caused
by the danda being hit on the head of the victim, however, the act of packing
her in a jute bag and dumping her in the ganda nala amounts to murder.
Thus, Section 302 IPC is clearly applicable in this case.
7. After considering the rival submissions of the parties and perusing the
nominal roll, it is seen that the Petitioners have been in custody for
approximately 10 months. The question as to whether the offences of the
Petitioners are to be taken cognizance of under Section 308 IPC or Section
302 IPC, is to be heard at the time of framing of charges and not at this
stage. The Court is thus not inclined to grant bail in this case, in view of the
conduct of both the Petitioners who, after the victim was hit with a danda,
did not give her any medical help. Under these circumstances, the request
for bail is rejected.
8. However, the Petitioners are given liberty to make their submissions
as regards the question of whether charges should be framed under Section
302 IPC or 308 IPC at the appropriate stage. The said submissions shall be
considered on merits without being prejudiced by the submissions made by
the parties herein, as well as the observations of this Court. Considering the
nature of this matter, the Trial Court ought to take up the matter at an early
date including the question as to whether the Petitioners are to be charged
under Section 302 IPC or Section 308 IPC and endeavour to pass orders
within a period of three months from today. The Trial Court may conduct
the hearing through video conferencing, if required. Copy of this order be
Signature Not Verified
Digitally Signed
Signing Date:04.09.2020 21:40
Digitally Signed By:SINDHU
KRISHNAKUMAR
Signing Date:04.09.2020 22:35:05
communicated to the concerned ld. ASJ, by the IO concerned.
9. The bail applications are disposed of in the above terms. All pending
applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
SEPTEMBER 4, 2020
dj/T/Ak
Signature Not Verified
Digitally Signed
Signing Date:04.09.2020 21:40
