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Mohd Arif Vs State: It Is The Duty Of The Court To Ensure That The Law Does Not Become A Tool For Targeted Harassment

Tushar Bansode ,
  06 September 2021       Share Bookmark

Court :
Delhi High Court
Brief :
In the following case, the Supreme Court granted bail to the five accused in the Delhi riot case.
Citation :
BAIL APPLN.774/2021 & CRL.M.A.9357/2021

Date of judgement:
3 September 2021

Bench:
Justice Subramonium Prasad

Parties:
Petitioner – Mohd Arif
Respondent – State

Subject

In the following case, the Supreme Court granted bail to the five accused in the Delhi riot case.

Overview

  • The present case involved the murder of Head Constable Ratan Lal in the Delhi riots, which was caused by an unlawful assembly protesting against the CAA and NRC. Mohd Arif (petitioner) along with four other persons were the main accused in this case. The charge sheet was filed and the matter was pending in the trial court. Many bail applications, followed by interim bail applications were filed and were rejected by the Court after which, the petitioner approached the Supreme Court for relief.
  • The counsel for the petitioner contended that the petitioner has been falsely and maliciously implicated in the instant case. He said that the statements were recorded by the police belatedly and without any supportive evidence. Also, the presence of the petitioner at the crime scene was not affirmed by the eyewitness yet. He also pointed out that the CCTV footage relied upon by the prosecution does not explicitly display the petitioner, making that evidence unreliable.
  • In the absence of any concrete evidence, the counsel prayed to the court to grant bail to the petitioner. He further added that the petitioner has been behind the bars for 17 months and no Test Identification Parade was carried out to confirm the identity of the petitioner. Also, the prosecution is solely relying upon the Call Detail Record (CRD) of the petitioner to prove his presence at the crime scene, which is vague and inconclusive.
  • On the other hand, the Special Public Prosecutor submitted the CCTV footage in the court, clearly indicating the presence of the accused at the crime scene. He also claimed that the attack was pre-meditated and not a heat of passion, based on the fact that the crowd was carrying sticks, rods, and stones. Even though a warning was issued, they attacked police officials on duty, causing the death of the Head Constable, grievous injuries to the DCP and ACP, and injuries to more than 50 police officers.
  • The prosecutor vehemently opposed the bail application, keeping in mind the seriousness of the charges framed against the accused and the negative impact on society. He also brought the Court's attention to the fact that the unlawful assembly had turned violent, burnt vehicles and other properties in the vicinity, including a petrol pump and a car showroom. Referring to P. Chidambaram V. Directorate of Enforcement, he submitted that in addition to the triple test or tripod test, the gravity of the offence had to be considered while granting bail.

Issues

  • Should bail be granted to the petitioner?

Legal Provisions

  • Section 149 of the Indian Penal Code (IPC) – If an offence is committed in pursuance of a common object by an unlawful assembly, then each member of such assembly shall be guilty of that offence.
  • Section 437 of Criminal Procedure Code (CrPC) – When bail is granted in non-bailable offences.

Judgement Analysis

  • The Apex Court observed that the jurisprudence of bail attempts to bridge the gap between the personal liberty of the accused and ensuring social security remains intact. It is against the Constitution to allow an accused to remain behind the bars during the pendency of the trial. Thus, the court must take multiple factors into consideration while rejecting or granting bail.
  • Bail is the rule and jail is the exception. It is constantly reiterated by the Supreme Court that courts need to be alive to both ends of the spectrum. It is their duty to ensure proper enforcement of criminal law, and also ensure that the law does not become a tool for targeted harassment. It shall also prevent arbitrary deprivation of personal liberty.
  • The court held that the footage that placed the petitioner at the crime scene cannot be relied upon because the petitioner is not clearly visible and several other people have worn similar clothes causing ambiguity. Also, the CDR claimed by the prosecution is inconclusive, because the petitioner is a resident of that area. It also recorded that other statements were recorded after a delay of two months.
  • Justice Subramonium Prasad also noted that no evidence was placed on record to prove that the petitioner had damaged CCTV cameras. Given the fact that the trial is going to continue for a long period of time and that the petitioners have already been in custody for 17 months, it would be unwise and injudicious to confine them for an
  • undefined period of time at this stage. Also, the petitioner has roots in the society, hence there is no apprehension of him fleeing or absconding.
  • Under the given facts and circumstances, the Supreme Court granted the five accused conditional bail. They were directed to furnish a personal bond of Rs.35,000/- with one surety and not leave the NCT of Delhi without prior permission. They were also ordered to not tamper with the evidence or influence witnesses, violation of which would lead to cancellation of bail.

Conclusion

In the case of Mahipal V. Rajesh Kumar (2020), the Apex Court had observed that in bail matters, there is no straight-jacket formula that the court can apply. Though it is not essential to enter into a detailed analysis of the evidence to decide bail matters, the court must examine whether a prima facie or reasonable ground exists to believe that the accused had committed the offence.

Also, in Prabhakar Tiwari V. the State of U.P (2020), the Supreme Court has held that the mere fact that the alleged offence is grave and serious cannot solely be the basis for the refusal of prayer for bail.

Click here to download the original copy of the judgement

 
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