The Delhi High Court has denied bail to Vishal Singh, an accused in the North-East Delhi riots, and granted relief to Arun Kumar and Ravi Kumar, all booked in FIR registered at Bhajanpura police station.
A single-judge bench of Justice Subramonium Prasad passed this order while hearing a bail application filed by Vishal Singh @ Pawan.
The petitioner seeks bail in FIR dated February 27, 2020 registered at PS Bhajanpura for offences under Sections 147, 148, 149, 302, 307, 396, 436, 455, 201, 188, 34 of the Indian Penal Code, 1860.
The FIR relates to the violence that took place in the National Capital Territory of Delhi in the month of February 2020.
The facts leading to the bail application are that on February 25, 2020, at around 11 AM, the complainant had gone to buy milk from a nearby shop when he received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in support of NRC and CAA. The crowd was chanting slogans of “Jai Shri Ram”. The crowd later entered their house after breaking open the locks, and set it on fire.
It is stated that the complainant’s family members and employees rushed to the top floor of the house. The complainant’s family members and workers were safely rescued from the roof of his residence, which was made possible by the rescue operation launched by the police in support with the locals of the vicinity.
It is stated that the complainant’s mother, Akbari, who was 85, could not reach the rooftop due to her age. After extinguishing the fire, her body was found lying on a folding bed and was recovered from the second floor. She was taken to Guru Teg Bahadur Hospital, where she was declared brought dead. A post-mortem was conducted at GTB Hospital itself and vide PM Report dated February 28, 2020, the cause of death was opined as asphyxia as a result of an ante-mortem inhalation of smoke.
It is further stated that the crowd looted Rs 8 lakh in cash and a box containing gold and silver jewellery and other valuable articles from their residence.
It is stated that the petitioner was arrested on March 16, 2020 and has been in custody since then. The charge sheet was filed on June 7, 2020 and on April 6, 2021 charges were framed by the Trial Court.
The petitioner had filed three bail applications before the Court of Sessions and subsequently orders dated April 29, 2020, October 20, 2020 and November 02, 2021 the same were dismissed by the Judge of the Trial Court.
Pankaj Yadav, the counsel for the petitioner, contended that the accused has been falsely implicated in the matter and that there exists no evidence which can prove the connection of the petitioner to the incident beyond reasonable doubt.
He submitted that the FIR was registered on February 27, 2020, that is, two days after the incident occurred and the name of the accused is nowhere mentioned therein.
He further submitted that the accused has no relation with any of the co-accused, the complainant and his family members and has no reason to cause them any harm.
The counsel for the petitioner also submitted that the petitioner is not mentioned anywhere in the identification memo dated March 10, 2020.
He submitted that Mohd. Asif also failed to mention the name of the petitioner in his statement under Section 161, CrPC dated March 10, 2020, when he was shown the video clippings.
He highlighted the fact that despite having enough opportunities to mention the petitioner before, the petitioner was named only on March 15, 2020 by Mohd Saeed Salmani and Mohd Asif Salmani as their witness statements.
Pankaj Yadav, the counsel for the petitioner, said that the witness statements were in contradiction to each other. For this, the counsel placed reliance on the statement of Mohd Salmani dated March 15, 2020, who mentioned that the person wearing black clothes is the petitioner whereas the statement dated of Mohd Asif dated March 10, 2020 mentions that the person wearing black clothes is Prince, who is not the petitioner herein.
The counsel for the petitioner contended that the mobile phones that contained the video clippings were not seized in accordance with Section 102 of the CrPC by the investigating officer.
The phones were kept in personal possession of the investigation officer till March 16, 2020 before it was handed over to HC Balraj No 120/Crime who deposited the same in the Malkhana of PS Bhajanpura. Therefore, it cannot be ruled out that the video clippings could have been tampered.
The counsel for the petitioner submitted that the arrest of the petitioner is solely based on certain video clippings that show him to be present in that area during the time of the incident, the credibility of which is yet to be determined.
In this regard, he submitted that the FSL report pertaining to the said videos has not yet been placed on record, despite the fact that almost two years have passed since the alleged incident.
The counsel for the petitioner submitted that the accused has been in custody since March 16, 2020. The investigation has been completed, the chargesheet has been filed and there have not been any new developments or further arrests since then. He submitted that the supplementary chargesheet has not been supplied and the FSL report has not been placed on record yet, even though two years have passed. He also submitted that the trial is not likely to be concluded anytime soon.
Therefore, continued incarceration will violate the petitioner’s right to life and personal liberty under Article 21 of the Constitution of India.
The petitioner has no criminal antecedents and has always been cooperative with the investigative agency.
Per Contra, Amit Prasad, the SPP for the state, submitted that during investigation, the statements of the complainant, and his son Mohd Asif have been recorded and both of them categorically mention the name of the accused herein.
He submitted that out of these, in a video clip of 124 seconds shot by Mehraj Ansari, the petitioner was seen as an active member of the riotous mob which set the house of the complainant on fire.
He further submitted that apart from this, in a video clip of 0.52 seconds that is provided by the complainant and available on record, one person wearing black clothes was seen pelting stones. This person was identified as the petitioner herein by the complainant and his son Mohd Asif after watching the said video.
He submitted that Mohd. Asif also informed that he saw the petitioner herein in his house along with the mob.
Mehmood Pracha, the counsel for the complainant, contended that the above incident was a premeditated crime.
He submitted that the house of the complainant was situated inside the gali and not at the outskirts. Further, through video clippings, he highlighted the fact that the area is so compact that there is virtually no room for any escape.
He further submitted that the ground floor was set on fire and, therefore, the residents were unable to come out of the house. This forced the residents to rush to the top floor in order to save themselves. The mob of which the petitioner was a part, had the knowledge that in all probability, the fire would result in the death of residents.
He also submitted that this attracts the offence of Section 302, IPC and considering the gravity of the offence, the accused should not be released on bail.
The Court noted that,
A perusal of the chargesheet indicates that the petitioner is a resident of Bhajanpura. The chargesheet states that an analysis of the petitioner’s mobile number has revealed that he was present at the scene of crime during the time of the alleged incident. The chargesheet further mentions that the petitioner has been identified by the complainant and his son Mohd Asif.
The chargesheet shows that during the course of investigation certain video clips were retrieved that were shot from the mobile phones of the individuals present at the scene of crime or downloaded online. A perusal of the video footage indicates that the petitioner herein was an active member of the mob that set the house of the complainant on fire. The video clippings clearly show the petitioner herein dragging a scooty near the scene of crime and arson. The clippings further show the petitioner herein pelting stones towards the residence of the complainant.
In the case, the issue which arises for consideration is whether when an offence of murder is committed by an unlawful assembly, then should each person in the unlawful assembly be denied the benefit of bail, regardless of their role in the unlawful assembly or the object of the unlawful assembly, the Court said.
The Court opined that the footage of the Petitioner at the Scene of Crime is quite egregious, and is therefore sufficient to keep the Petitioner in custody. Furthermore, the Petitioner does not satisfy the ingredients to claim bail on ground of parity with the other co-accused of the Petitioner who have been enlarged on bail vide Bail Application No 2312/2021 and Bail Application 2386/2021as, unlike the Petitioner herein, none of those co-accused, who have been granted bail were caught in an overt act which indicated their active participation in perpetrating the offences mentioned in FIR.
“In view of the facts and circumstances of the cases, without commenting on the merits of the matter, the Court is of the opinion that the Petitioner is not to be granted bail,” the Court observed while dismissing the bail application.