There cannot be an umbrella assumption that every member of an unlawful assembly has a common object, the Delhi High Court observed while granting bail to six people accused of murder during the Delhi Riots of 2020 [Mohd Shoaib@Chhutwa v. State]..Justice Subramonium Prasad said that the applicability of Section 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) specifically read with Section 302 (murder) of Indian Penal Code (IPC) 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. There cannot be an umbrella assumption of guilt on behalf of every accused by the Court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter therein. This principle, therefore, gains utmost importance when the Court considers the question of grant or denial of bail,” the Court has held..The six accused were charged under several sections of the IPC including Section 149 read with Section 302 for murdering 20-year-old Dilbar Negi during the Delhi Riots.The State had argued that these six people were part of the mob that chopped off Negi's limbs and then set fire to the establishment where he was housed to burn the evidence..However, the Court noted that the sole evidence in the case was the presence of the accused on CCTV footage and the statements of eyewitness and a secret informer.The Court said that the accused were seen at the scene of the crime at around 4:00 PM, while the deceased received a phone call at around 8:00 PM. Therefore, a conclusion can be drawn that he was alive till that time. It thus said that the accused’s presence at the scene of crime is inconclusive at this juncture, and can only be confirmed during the course of trial..On the State’s submission that the accused had committed an offence which is punishable with death or life imprisonment and therefore there is a bar imposed by Section 437(1) of CrPC on grant of bail, Justice Prasad held that there is no blanket bar on grant of bail in such cases. The Court can exercise its discretion in releasing the accused as long as reasons are recorded which clearly disclose how the discretion has been exercised, it was held.The Bench also rejected the State’s submission that a co-accused in the case was denied bail by way of an order passed in October 2020.It said that this denial was in 2020 and the accused before the court in the present applications have been in custody for nearly 22 months. Therefore, the precedential value of this order rejecting bail to the co-accused will not apply in this case. It went on to hold,“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.”.The Court further noted that the chargesheet and supplementary chargesheet in the case have already been filed. Given that there are 72 witnesses that need to be examined, it is likely to take a very long time. Therefore, it would not be prudent to keep the petitioners behind bars for an undefined period of time at this stage, the Court concluded..Senior Advocate Salman Khurshid along with Advocates Salim Malik, Bilal Anwar Khan, Anshu Kapoor, Tehsina Z Hussain, Shama Usmani, Abdul Kadir, Shavana, Sharukh, Shamsad Khan, Bhim Kishore, Nikita Agarwal and Pankaj Kumar appeared for the six accused.The State was represented by Special Public Prosecutors (SPP) Amit Mahajan and Rajat Nair along with Advocates Dhruv Pande and Shantnu Sharma..[Read Judgment]
