TMI Blog2020 (5) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... This court also cannot but notice that the offences under section 147/148/149 IPC arise in the context of an 'unlawful assembly', which section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision; while in the present case only 2 persons appear to have been charged. Also, the offences under sections 147/148/149/427 IPC are in any case bailable offences; and only the offence under section 436 IPC is non-bailable; and there is no material to support that offence that can be said to be clinching or unquestionable, to say the least. While ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail, however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two, one of them being the applicant. In this peculiar circumstance, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vikas, who is alleged to have seen the applicant committing the offences, was posted and present at the place of the incident. It is further pointed-out that the complainant's shop, where the applicant is alleged to have been spotted and Rajdhani Public School, the CCTV footage whereof is stated to have captured the applicant's presence, are not in the vicinity of each other. 4. It is also argued that Mohd. Anwar, who is co-accused with the applicant in FIR No. 105/2020, has already been admitted to bail by the learned Additional Sessions Judge by order dated 13.05.2020 in connected FIR No. 111/2020; and by order dated 19.05.2020 in connected FIR No. 112/2020. It is stated that Mohd. Anwar is co-accused along with the applicant in 5 FIRs registered in connection with the riots that happened in Delhi in February 2020, as recorded in status report dated 23.05.2020. Ms. John also points-out that of the offences alleged, only one, namely the offence under section 436 IPC is a non-bailable offence. 5. Opposing the grant of bail, Mr. Hirein Sharma, learned APP for the State submits that the applicant has been identified by the complainant; by Ct. Vikas; as well as in the CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge. 10. In Masroor v. State of U.P. (2009) 14 SCC 286, while giving emphasis to ascribing reasons for granting of bail, however, brief it may be, a two-Judge Bench observed that: (SCC p. 290, para 15) 15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. 11. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 it has been observed that (SCC p. 499, para 9) normally this Court does not interfere with an order passed by the High Court granting or rejecting the bail of the accused, however, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following picture emerges. 8. In the complaint/statement made by the complainant on 03.03.2020 he said this: In supplementary statement dated 10.04.2020, made more than a month later, the complainant says the following: It is seen that nowhere in the above statements does the complainant name or otherwise identify the applicant. In his supplementary statement the complainant only says, that in the video and photos shown to him in the police officer's cell phone , he has identified 2 persons who set fire to his shop and, if confronted, he will be able to identify other persons who were present. 9. In first status report dated 23.05.2020, the State says this: 6. That notice U/s. 91 Cr.P.C., were given to the residents/shopkeepers of the area to provide the CCTV Footage of the said incident, however, no footage is made available as most of the CCTV Camera's in the area were damaged and burnt by rioters. However, it has also came to light that some cameras are also installed by PWD in the various parts of the area, footage of these cameras is still awaited and on the basis of these footages, further Investigation will be carried out accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... footage that, according to the State, the applicant has been identified as being one of the main persons involved in the offences alleged inter-alia under sections 147/148/149 IPC. 13. Upon being queried, Mr. Sharma confirms, on instructions of the Investigating Officer with whom he has spoken over the phone, that investigation in FIR No. 105/2020 is complete; that a draft charge-sheet has been prepared and forwarded to the concerned ACP; and that to that extent, investigation in this matter is closed. 14. Mr. Sharma also confirms that there are only 2 accused persons in FIR No. 105/2020 as also in the charge-sheet, namely the applicant and Mohd Anwar. He further states, that there are only 2 main witnesses in the matter, the complainant Mohd. Shanawaz and Ct. Vikas; and the other witnesses are only formal witnesses and no public witness is being cited by the State. 15. The APP also confirms that the 5 cases mentioned in the status report, all arising from the same or related incidents of riots in Delhi in February 2020, are the only cases in which the applicant is involved; and that the applicant has no previous or other involvement or criminal record. The APP however con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) thirdly, Rajdhani Public School, the CCTV footage from which is relied upon by the State, appears to be located at a place from where the complainant's shop seems unlikely to be visible; (d) fourthly, Ct. Vikas's claim that he was present seems to be contradicted by the complainant's statement as recorded in the FIR that the complainant was unable to contact the police and therefore, fled from the shop; (e) fifthly, co-accused Mohd. Anwar has already been admitted to bail in cases arising from the same incidents of rioting in the same area; (f) sixthly, investigation in the matter is complete and chargesheet has been drawn-up and sent for approval to higher police authorities; and (g) lastly, when offences are alleged to have been committed by an 'unlawful assembly', after concluding investigation, the State has been able to identify and name only 2 persons from amongst a crowd of some 250-300 persons; this court is persuaded to admit the applicant to regular bail on the following conditions: (a) The applicant shall furnish a personal bond in the sum of ₹ 50,000/- alongwith 02 sureties of the like amount from blood-relatives, to th ..... 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