The Delhi High Court on Tuesday granted bail to Shahnawaz and Mohd Ayyub in connection with murder of Head Constable Ratan Lal and causing head injuries to a DCP during the North-East Delhi riots that rocked the national capital last year. (FIR 60/2020 PS DayalPur). However the Court has rejected the bail pleas of Sadiq and Irshad Ali in the case.
Justice Subramonium Prasad passed the order after reserving it last month. The Court heard at length various counsels appearing on behalf of the accused persons along with ASG SV Raju and Special Public Prosecutor Amit Prasad appearing for prosecution.
While the order was reserved in 11 bail applications filed by different accused persons in the FIR, the Court passed orders in 4 of them. The Court had granted bail to 5 accused persons namely Mohd. Arif, Shadab Ahmad, Furkan, Suvaleen and Tabassum earlier this month.
Observations On Granting Bail To Shahnawaz and Mohd Ayyub
While granting bail to Mohd Ayyub, the Court observed that there was no electronic evidence placing him at the Scene of Crime during the time of the alleged incident. It further observed that he cannot be kept in custody only on the basis of the disclosure statements.
"The fourth chargesheet has already been filed, and trial in the matter is likely to take a long time. This Court is of the opinion that it would not be prudent to keep the Petitioner behind bars for an undefined period of time at this stage. The Petitioner has roots in society, and, therefore, there is no danger of him absconding and fleeing," the Court said.
While granting bail to Shahnawaz, the Court reiterated the fundamental right to protest and express dissent and opined that the fact that he was part of the protest is not a sufficient ground to refuse bail to him.
"Merely being one of the organisers of the protest as well as being in touch with others who participated in the protest is also not sufficient enough to justify the contention that the Petitioner was involved in the pre-planning of the alleged incident," the Court observed.
Observations On Denying Bail To Sadiq and Irshad Ali
The Court, while denying bail to Irshad Ali, took note of the fact that he was seen in the CCTV footage, carrying a danda and provoking the crowd.
"The clinching evidence that tilts this Court to prolong the incarceration of the Petitioner is his presence in the Vishal Chaudhry video wherein he is clearly identified at the Scene of Crime, using a stick to beat uniformed police officials who are present around him," the Court said.
The Court was thus of the opinion that the footage of Irshad Ali at the Scene of Crime was quite egregious and therefore sufficient to keep the him in custody.
Making similar observations while denying bail to Sadiq, the Court said that he was not merely a curious onlooker.
"The fact that he actively participated and pelted stones at the Police Officials at the Scene of Crime justifies the invocation of Section 149 IPC read with Section 302 IPC in the instant case," the Court observed.
About FIF 60/2020 (P.S. DayalPur)
FIR 60/2020 was registered on the statement of a Constable stating that on 24th February last year, he was on the law and order arrangement duty with other staff members at Chand Bagh area.
It was stated that around 1 PM protesters carrying danda, lathies, baseball bats, iron rods and stones started gathering at the main Wazirabad road and did not pay heed to the directions of senior officers thereby became violent.
It was further stated that after repeated warnings to the protestors, mild force and gas shells were used to disperse the crowd. According to the Constable, violent protesters started beating people as well as police personnel, due to which he himself sustained injury on his right elbow and hand.
He also stated that the protestors attacked DCP Shahdara, ACP Gokulpuri, and Head Constable Rattan Lal due to which they fell on the road and sustained grievous injuries. All the injured persons were taken to hospital, where it was found that HC Rattan Lal had already died due to injuries sustained and DCP Shahdara was unconscious and had sustained head injuries.
Court's Observations While Granting Bail To Co Accused Persons
In the case of Mohd. Arif, the Court noted that the applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations. When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object.
"Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring social security remains intact. 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. It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Therefore, the Court, while deciding an application for grant of bail, must traverse this intricate path very carefully and thus take multiple factors into consideration before arriving at a reasoned order whereby it grants or rejects bail," the Court said.
"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. Bail is the rule and jail is the exception, and Courts must exercise their jurisdiction to uphold the tenets of personal liberty, subject to rightful regulation of the same by validly enacted legislation. The Supreme Court has time and again held that Courts need to be alive to both ends of the spectrum, i.e. the duty of the Courts to ensure proper enforcement of criminal law, and the duty of the Courts to ensure that the law does not become a tool for targeted harassment".
At the outset, the Court observed that applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations.
"When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object," added the Court.
While granting bail to Shadab Ahmad & Tabassum, the Court was of the view that the sole act of protesting should not be employed as a weapon to justify the incarceration of those who are exercising this right.