While granting bail to a person accused of burning a shop during Delhi riots, the Delhi High Court held that 'sending a message to society' can't be basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody.
The Single Bench of Justice Anup Jairam Bhambhani noted that prison is primarily for punishing convicts ; not for detaining undertrials in order to send any 'message' to society.
The court said:
'The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails ; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial, the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial.'
Submissions Made By The Petitioner
Senior Advocate Rebecca M John, who appeared for the applicant, submitted that the complainant Mohd. Shanawaz's supplementary statement, upon which the State seeks to rely, does not in any manner identify or connect the applicant to the offences alleged.
Ms John further argued that no test identification parade was conducted of the applicant to get the complainant to identify him, which ought to have been done in a case such as this, alleging arson by an unlawful assembly.
It was also submitted that the complainant's shop, where the applicant is alleged to have been spotted and Rajdhani Public School, the CCTV footage whereof is stated to have captured the applicant's presence are not in the vicinity of each other.
Ms John then went on to contend that out of all the offences that the accused is charged with, only one, which is section 436 of IPC, is a non-cognisable offence.
Arguments Made By State
Appearing for State, Additional Public Prosecutor submitted that the accused was identified by the complainant, Constable Vikas, as well as the CCTV footage from outside the Rajdhani School.
Moreover, it was submitted that while no footage is available of the incident, footage from some cameras that are installed by the PWD in various parts of the area is still awaited, on the basis of which further investigation will be carried-out.
Observations of the Court
After looking at the evidence, the court observed that nowhere does the complainant name or otherwise identify the applicant.
The court refused to rely upon the statement of Constable Vikas, who claimed to be the eye witness, by observing that the complainant had mentioned in his statement that when the accused was allegedly burning his shop, he tried calling the police but to no avail.
'Even on first blush, it is not understood as to why the complainant would say that he failed to reach the police by telephone, if Ct. Vikas was already present there', the court observed.
The court also showed doubts on the claim that CCTV camera from a school which was situated 400 metres away could capture the incidents taking place outside the complainant's shop.
While granting bail, the court highlighted that:
'While ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two, one of them being the applicant. In this peculiar circum- stance, this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons.'
Petitioner in this case was represented by Senior Advocate Rebecca M John, and Advocate Bilal Anwar Khan.