Despite noting the possibility of custodial violence, illegal detention and loopholes in the prosecution's narrative, the Delhi High Court refused to grant bail to a person arrested for an alleged involvement in violence committed during Delhi Riots.
Even while denying the bail, the Single Bench of Justice Mukta Gupta highlighted that no offence under Section 3 of the PDPP Act is made out against the Petitioner for the reason that all the properties which have been alleged to be torched or rioted were not the government property.
The Petitioner in the present case had sought regular bail in a case registered for offences punishable under for offences punishable sections 147/148/149/427 of IPC and section 3 of the Prevention of Damage to Public Property Act, 1984 (PDPP Act).
The Petitioner had argued that he has not been arrested in any other FIR and is not involved in any other offence. Moreover, as per the status report, the witness who gave the source information also signed the arrest memo, but till date, a copy of the Arrest Memo has not been supplied to the Petitioner or his family members.
He further submitted that on February 28, his medical examination was conducted in the jail wherein it was revealed that he had bruise marks on the back, buttock and thighs.
It was also submitted by the Petitioner that no video footage of nearby places has been collected by the police till date. Moreover, there has been no recovery from the personal search of the Petitioner and thus there is no physical evidence of the involvement of the Petitioner in the alleged offence.
While claiming that the police charged him with section 436 of the IPC despite there being no evidence to support the same, the Petitioner contended that there is no evidence as yet against him showing his involvement for any offence punishable with more than seven years of imprisonment and hence he is not only entitled to the benefit of bail as per the decision of the Supreme Court in Arnesh Kumar vs. State of Bihar, but also in view of the resolution passed by the High Powered Committee.
'Further, Section 3 of the PDPP Act has been wrongly invoked for the reason even as per the FIR and the recoveries made, the Scooty, motorbikes, TSR and the Maruti Alto car allegedly burnt were not "public property" in terms of Section 2(b) of the PDPP Act as the same do not belong to the Government or any other authority controlled by the Government', the Petitioner argued.
Finally, he informed the court that due to the operation of nationwide lockdown in the country, he can't even go out and tamper with the evidence.
While evaluating the prosecution's case, the court observed that the statement of the eye witness was recorded only on 28th February 2020 which is an omnibus statement and does not identify any accused.
Moreover, there is undoubtedly a mystery surrounding the arrest of the Petitioner and co-accused which is further fortified by the nature of injuries received by the Petitioner as would be investigated in the course of events.
The court also took cognizance of a CCTV footage produced by the Petitioner which shows that he, along with another person Navid, was illegally detained on February 24, and that it was only when an application highlighting illegal detention was filed by the Petitioner, that the date of arrest was recorded as February 28 by the police.
While rejecting the bail, the court reasoned that with respect to section 436 of the IPC, the investigation is at a crucial stage as the SHO states that the video footage has been preserved and is yet to be examined.
The court observed that:
'Since the investigation is going on and the persons who were present at the spot are required to be ascertained by scientific evidence and even if found that the petitioner is part of the unlawful assembly even though he may not have individually torched any vehicle or the shops he would be liable for the offences, at this stage this Court finds no ground to grant bail to the petitioner.'
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