Rejecting the argument 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 the February Delhi riots. (Firoz Khan vs State)
While observing that a prison is primarily for punishing convicts, the Court remarked,
(Prisons are) not for detaining undertrials in order to send any ‘message’ to society. 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.
The above order was passed by a Single judge Bench of Justice Anup Jairam Bhambhani.
The bail applicant, Firoz Khan had been 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, some rioters had set the Complainant’s shop on fire and looted lakhs of Rupees on February 24.
The Applicant had sought regular bail on the grounds that he was neither named in the FIR nor was there 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 identification tests were conducted of the Applicant to get the Complainant to identify him.
Further, in the absence of evidence the mere presence of the Applicant in the vicinity of the crime spot could not be presumed.
The Court was also informed that the co-accused in the delhi riots case had already been granted bail.
The Prosecution claimed that the Applicant had been identified by the Complainant, a police constable who was present on the crime spot of delhi riots case. It was added that the applicant was also captured in the CCTV footage obtained from a nearby school.
At present, there is no public witness in the delhi riots case.
After hearing the FIR and the Complainant’s statement, the Court noted that the Complainant had neither named or otherwise identified the Applicant.
The Court further observed 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 stated that no police was present at the time of the incident.
As far as the argument regarding 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.
It appears incredible therefore that camera/s installed in the school would be able to ‘see’ the complainant’s shop.
The Prosecution also informed the Court that the investigation was complete and the draft charge sheet pressing charges against the applicant on the basis of the above evidence had been prepared and forwarded to the concerned ACP.
The Prosecution further contended that granting of bail in the delhi riots case 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“, to which the court remarked that the court’s job was to dispense justice in accordance with law, not to send messages to society.
Court stated highlighting bail of delhi riots accused ,
“..this court is of the view that 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 observed that an accused of delhi riots case would be made to undergo his sentence when it is awarded after a trial.However, if the Prosecution is unable to prove his guilt, the State could not give back to the accused the years of valuable life lost in prison.
Lastly, the Court noted highlighting delhi riots case that while the offences have been allegedly committed by an ‘unlawful assembly’, even after concluding investigation, the Prosecution could identify 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 of a 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 including marking his presence before the concerned police station, not leaving Delhi etc were also imposed on the Applicant.
Before concluding the order, the Court observed in delhi riots case 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,
“..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. This court is conscious that ‘judicial custody’ is the custody of the court; and the court will be loathe to depriving a person of his liberty, in the court’s name, on the mere ipse-dixit of the State, when it finds no substantial basis or reason for doing so.”
The Court clarified in delhi riots case that nothing in the order shall be construed as an expression on the merits of the evidence.
Senior Advocate Rebecca John with Advocate Bilal Anwar Khan represented the Applicant.
APP Hirein Sharma appeared for the Applicant.
Read the order here: