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Rejecting the Prosecution’s stance that granting bail at an early stage might send an “adverse message in the society”, the Delhi High Court recently extended regular bail to an accused in a case arising out of the February Delhi riots. (Firoz Khan vs State)
Stating that a prison is primarily for punishing convicts, the Court has remarked,
The order was passed by a Single judge Bench of Justice Anup Jairam Bhambhani.
The bail applicant, Firoz Khan (Applicant) was taken into custody on April 3, 2020 in connection with FIR under sections 147/148/149/427/436 IPC at PS Dayalpur.
As per the Complainant's version in the FIR, on February 24, some rioters set the Complainant's shop on fire and looted lakhs of Rupees.
The Applicant sought regular bail on the grounds that he was neither named in the FIR nor was any material collected during the investigation that would identify the Applicant as one of the perpetrators of the offences alleged in the FIR.
It was submitted that no test identification parade was conducted of the Applicant to get the Complainant to identify him.
Further, in the absence of evidence to the contrary, the presence of the Applicant in the vicinity of the crime spot could not be presumed.
The Court was also informed that the only co-accused in the case had already been granted bail.
Opposing the grant of bail, the Prosecution claimed that the Applicant had been identified by the Complainant, a police constable who was present on the crime spot. It was added that the presence of the Applicant was also captured in the CCTV footage obtained from a nearby school.
At present, there were no public witness in the case.
After recording the submissions made by the parties, the Court considered in detail the law of bail as laid down by the Supreme Court in a series of judgments.
After perusing the FIR and the Complainant's statement, the Court noticed that the Complainant had neither named or otherwise identified the Applicant.
The Court further noted that while the Prosecution relied on the statement of the alleged eye witness i.e. a police constable to establish the presence of the Applicant on the spot at the relevant time, the FIR clearly claimed that no police was present at the time of the incident.
As far the CCTV footage from a school was concerned, the Court used Google Maps to state that the distance between the school and the Complainant's shop was about 400 meters and that the two were situated on two different sides of a turn in the road.
Upon being queried, the Prosecution also informed the Court that investigation was complete and the draft chargesheet pressing charges against the Applicant on the basis of the above evidence had been prepared and forwarded to the concerned ACP.
While the Prosecution contended that granting of bail at this early stage might send "an adverse message in the society and such crimes should not be allowed to happen in the national capital", the Court remarked that the remit of the court was to dispense justice in accordance with law, not to send messages to society.
"..this court is of the view that cannot 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 Court said.
The Court observed that an accused would, of course, be made to undergo his sentence when it is awarded after a trial.
However, if the Prosecution is unable to prove the guilt, the State could not give back to the accused the years of valuable life lost in prison, it added.
Lastly, the Court noted that while the offences were alleged to have been committed by an ‘unlawful assembly’, even after concluding investigation, the Prosecution had identified and named only 2 persons from amongst a crowd of some 250-300 persons.
In view of the above, the Court admitted the Applicant to regular bail on a personal bond in the sum of Rs 50,000 along with two sureties of the like amount from blood-relatives, to the satisfaction of the Trial Court/Duty Metropolitan Magistrate.
Other conditions with respect to marking his presence before the concerned police station, not leaving Delhi etc were also imposed on the Applicant.
Before concluding the order, the Court conceded that ordinarily, it would not have entered upon any discussion on the evidence at the stage of considering bail.
However, in the present case, where a purported unlawful assembly of some 250-300 persons was alleged to have committed offences, the police picked-up only two persons, the Court observed,
The Court clarified that nothing in the order shall be construed as an expression on the merits of the evidence and disposed of the bail application.
Senior Advocate Rebecca John with Advocate Bilal Anwar Khan represented the Applicant.
APP Hirein Sharma appeared for the State.
Read the Order: