* IN THE HIGH COURT OF DELHI AT NEW DELHI Order dated: 08th September, 2017 + CRL.M.C. 2819/2017 [ENTITY] Petitioner Through: Mr.[ENTITY], APP for [ENTITY] Inspector Satinder Sangwan, SHO Malviya Nagar with SI Om Prakash, PS-Hauz Khas, New Delhi. versus 1. TARUN @ MADDY 2. VIKAS @ SHAMMI 3. ASHISH BALGUER 4. VIKAS BALGUER 5. VISHAL BALGUER Respondents Through: Mr. [ENTITY] for R-1. Mr.[ENTITY], Adv. with Mr.[ENTITY], Adv. for R-2. Mr.[ENTITY], Sr. Adv. with Mr.[ENTITY], Adv. for R-3, R-4 & R-5. CORAM: HON'BLE MR. JUSTICE [ENTITY] ORDER
[ENTITY], J.
1. Instant petition under [SECTION] [ACT] read with [SECTION] [ACT] has been preferred by the [ENTITY] (petitioner herein) seeking setting aside of the impugned order dated 24.04.2017 passed by the learned Additional Sessions Judge-02, (South) Saket Courts, New Delhi in FIR No. 1187/2015 registered under [SECTION] [ACT] at Police Station Hauz Khas whereby the respondents, i.e. [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], were granted bail as the other co-accused [ENTITY] was granted bail vide order dated 27.02.2017 passed by the learned Additional Sessions Judge-02, (South) Saket Courts, New Delhi in FIR No. 1187/2015 registered under [SECTION] [ACT] at Police Station Hauz Khas.
2. The brief facts as per the charge-sheet are that on 22.10.2015 on receipt of DD No.10A regarding one [ENTITY] and one [ENTITY] being admitted at Trauma Centre, AIIMS, ASI [ENTITY], PS Hauz Khas visited there and lodged First Information Report after recording the statement of one of the injured- [ENTITY]. The said injured informed that on 21.10.2015, he along with his friends [ENTITY], [ENTITY], [ENTITY] (since deceased) and [ENTITY] had gone to Shanghai Club, Hauz Khas in two separate cars, i.e. Santro No- UP 16AM 6317 and Honda Civic No- DL 7CF 4118, at around 12.00-12.15 (night) and while dancing in the said club his hand stuck with an individual to whom he said 'sorry'. On this the said individual abused and questioned him 'does he know who he is?' and a quarrel started between the two groups and the said individual took a glass from one of his friend and hit the complainant, but the matter was pacified by the bouncers/security personals of the club. Thereafter, the complainant and his friends were sent out of the club and when they came out of the club and reached IIT Gate he ([ENTITY]) realised that his mobile phone was missing which might have fallen during the quarrel and he along with his friends [ENTITY], [ENTITY] and [ENTITY] came back in Santro car to the club. When they reached near the club at some distance before the club, they found that a Mercedes and EON car had blocked the road and a Bolero car was parked on the road-side. When they asked them to let them pass, one of the boys with whom an altercation had taken place in the club, threatened to teach them a lesson. Thereafter, all the 7/8 assailants started beating them, one of the assailant brought an iron rod from the car and started hitting [ENTITY] and when he intervened to save [ENTITY], they also made him to fall on the road. Thereafter, one of the assailant lifted a cemented brick and hit him on his head and they all ran towards different directions to save themselves leaving Santro car at the spot. It was further informed that when he returned back to take his car, he saw [ENTITY] lying at the spot unconscious and had sustained various injuries on his body. Thereafter, he along with one [ENTITY] took [ENTITY] to AIIMS Trauma Centre for treatment. Subsequently, a case under [SECTION] [ACT] was registered.
3. Thereafter, upon completion of the investigation, charge- sheet against [ENTITY], [ENTITY], [ENTITY] and [ENTITY] was prepared under [SECTION] [ACT]; charge-sheet against [ENTITY] and [ENTITY] was prepared under [SECTION] [ACT] and charge-sheet against [ENTITY] was prepared under [SECTION] [ACT].
4. Subsequently, the present respondents filed bail application before the Trial Court and consequently, vide impugned order dated 24.04.2017 the learned Additional Sessions Judge-02 (South) Saket Courts, New Delhi granted bail to the respondents on the ground that since about for one and a half years they were in judicial custody and the trial is not likely to be concluded in near future and co-accused ([ENTITY]) was already granted bail.
Hence the present petition.
5. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has submitted that the Trial Court while passing the bail order, basing the co-accused [ENTITY] on parity went wrong and granted bail. He has further submitted that present respondents bail does not come under the purview of parity as the role of each of the accused persons (including the respondents) were different and this Court has cancelled the bail granted to the co-accused- [ENTITY] vide order dated 31.05.2017.
6. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that initially FIR was registered under [SECTION] [ACT] which culminated into [SECTION] [ACT] and [ENTITY] (since deceased) died during hospitalisation. He has further submitted that FIR was qua unknown persons but later on during the course of investigation; the statement of the Manger of the Shanghai Club, Hauz Khas and on the inspection of the entry register and from the CCTV footage the accused persons were identified. However, the accused persons have refused to join the TIP proceedings.
7. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that all the accused persons were having active role in beating of the deceased- [ENTITY] and injured- [ENTITY] who were hospitalized at Trauma Centre of AIIMS on 22.10.2015 and during the course of treatment the one of the injured [ENTITY] (since deceased) died on 26.10.2015 in the hospital itself and in his post mortem report there were 21 injuries on the body of the deceased and the doctor opined the cause of death "Craneocerebral damage due to head injury (Injury no. 1,2,3) which are sufficient to cause death. All injuries are anti mortem in origin caused by blunt force/impact". The other injured person was [ENTITY]/complainant who gave his statement and later on FIR was registered on his statement.
8. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that there are total 7 accused persons and out of the seven accused persons, one of the co-accused [ENTITY] was granted regular bail by the learned Additional Sessions Judge vide order dated 27.02.2017 on the ground that he was not seen in the CCTV footage and since the CCTV has covered the incident and therefore, on the basis of doubt, he was granted bail and his role was not mentioned specifically in the charge sheet with reference to CCTV footage. Charge sheet was filed against all the seven accused persons under Sections [SECTION] The said order dated 27.02.2017 was challenged by the complainant-[ENTITY] before this Court in [CASE NUMBER] and subsequently vide order dated 31.05.2017, this Court cancelled the bail granted to the co- accused [ENTITY]. Thereafter, in between the other five accused persons (respondents herein) had moved bail applications before the Trial Court and the Trial Court vide impugned order dated 24.04.2017 granted bail to all the five accused persons (respondents herein) on the ground of parity.
9. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that one another co- accused [ENTITY] was charged only for offenses under [SECTION] [ACT] which are bailable offences and because of this reason he was not charged under [SECTION] [ACT] and the remaining Sections and he was enlarged on bail by the learned Metropolitan Magistrate on 16.11.2015 during the course of the investigation itself.
10. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that all the accused persons have been named by the eye witnesses [ENTITY], [ENTITY] and [ENTITY], Manager of the Club and 5 other eye witnesses in their statements made under [SECTION] [ACT]
11. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that the CCTV footage is not a primary evidence and the learned Trial Court should not have taken into account the secondary evidence while granting bail to the accused persons which is bad in law.
12. The learned Additional Public Prosecutor on behalf of the petitioner/[ENTITY] has further submitted that the role of the present respondents/accused cannot be the same or said to be same as every human acts differently in different circumstances. He has put emphasis on paras 14 & 15 of the impugned order dated 24.04.2017, that the impugned order does not whisper about the parity which in itself is very clear that the question of parity was never a matter of consideration and the present case has to be looked and considered on its own merit without being influenced by the order passed by the Hon'ble Supreme Court and this Court.
13. On the contrary, the learned senior counsel appearing for the respondent Nos.3, 4 & 5/accused persons, i.e. [ENTITY], [ENTITY] and [ENTITY], has submitted that the impugned order dated 24.04.2017 was in the knowledge of this Court as it is seen in the order dated 31.05.2017 at para-16, this Court while passing the said order did not make any reference or comment on the same as the said impugned order was in existence and once the said order was in existence this Court could have called for those files also to pass appropriate order, by not doing so the said order requires no interference. He has further submitted that earlier co-accused-[ENTITY]'s bail order was challenged by the complainant- [ENTITY]. However, in the present case the complainant did not come forward to challenge the bail order and it is the petitioner/[ENTITY] who has filed the present petition under [SECTION] [ACT] read with [SECTION] [ACT] and that too at the stage of SLP.
14. The learned senior counsel has further submitted that the impugned order dated 24.04.2017 indicates that the bail granted was because of the reason that the respondents were in judicial custody for one and half years and considering all other material aspects favouring the respondents, therefore, the present petition requires to be considered afresh on the basis of merit.
15. The learned senior counsel further submitted that the present petition is filed under [SECTION] [ACT] read with [SECTION] [ACT] and it could be done only in two ways. Firstly, if there is material on record to suggest that the accused persons have violated the terms of bail. Secondly, whether while granting bail, the learned Trial Court ignored the material evidence/considered irrelevant point/ordered to grant the bail.
16. The learned senior counsel has further submitted that during the entire arguments there is nothing coming on record which would suggest that the respondents have violated the terms of the bail order. Once the terms of the bail order have not been violated then the respondents bail only rests with whether any material evidence has not been considered or irrelevant material has been considered by the Trial Court while granting bail to the respondents/accused persons.
17. The learned senior counsel has further submitted that on facts the incident has taken place on the intervening night of 21.10.2015 and 22.10.2015. He has pointed out that as per prosecution version when security guards/bouncers of Shanghai Club asked the complainant and his friends to leave the place/club, i.e. the complainant- [ENTITY], deceased [ENTITY], [ENTITY]-witness, [ENTITY] and [ENTITY]-witnesses were asked to leave the Shanghai Club at 12:15am, and as per prosecution version they reached at IIT Gate in Santro car. When the complainant-[ENTITY] reached IIT Gate, he did not find his mobile with him, he then came back to the Shanghai Club where his mobile might have fallen and reached the place of incident/parking area where one Mercedes car and EON car were found blocking the road.
18. The learned senior counsel has further submitted that its mere chance how could the respondents/accused persons came to know that the deceased/injured would come back from IIT Gate to Shanghai Club. He has further submitted that mobile alleged to be lost has not been found during investigation .This indicates the incident was mere chance and not pre-mediated as under criminal jurisprudence.
19. The learned senior counsel has further submitted that since respondents were in judicial custody that was the main consideration for leading to grant of bail. So far the role of respondent 3 & 5, i.e. [ENTITY] and [ENTITY], are concerned they caught hold of the deceased/injured and the respondent no.4-[ENTITY] was not present at spot.
20. The learned counsel for the respondent No.1 [ENTITY] has submitted that he adopts the arguments advanced by Mr. [ENTITY] Senior advocate and submits that respondent No.1 is falsely implicated in present petition merely on the ground of presumption. He has further submitted that as per the charge sheet Investigation Officer has arrested all the accused persons on the basis of CCTV footage. It is further submitted that in the present petition filed by the petitioner/[ENTITY] for cancellation of bail, there is no ground for cancellation of bail is made out.
i. As per records, no condition up till date has been violated by the respondent No-1 [ENTITY].
ii. The respondent is on regular bail for the last 3 months and has not violated any terms of the bail.
iii. There is no illegality or perversity in the impugned order while granting of regular bail of respondent No.1.
21. The learned counsel for respondent No.2 [ENTITY] submits that he adopts the arguments advanced by Mr. [ENTITY] Senior advocate. In addition to that the learned counsel has submitted that the names of the accused person have been revealed out during the course of investigation in the statement of witnesses/eye witnesses on 22nd October or 23th October, 2015 are not correct. The learned counsel has further submitted that name [ENTITY] is till date no where in the statements.
22. The learned counsel for the respondent No.2-[ENTITY] has further submitted that statements of witnesses are readymade in nature wherein every where the statement of the witnesses under [SECTION] [ACT] the names of the accued persons given were, i.e. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] etc. and nowhere specifically name of [ENTITY] is there in their statement. However, in the conclusion of the charge-sheet, the Investigation Officer has recorded the name of the present respondentNo.2 in its conclusion but there is no specific name coming on record to suggest that the respondent No.2-[ENTITY] is name in the statement of the witnesses. The statement have been recorded on 22nd October or 23rd October, 2015 and respondent No. 2 was arrested on 28.10.2015 after arrest of [ENTITY]/respondent No.1 on 25.10.2015. The respondent No.2- [ENTITY] name is coming in the disclosure statement of [ENTITY] arrested on 25.10.2015. In the present case there are two persons named as [ENTITY], i.e. (1) [ENTITY]-respondent No.2 and (2) [ENTITY]-respondent No.4.
23. The learned counsel for the respondent No.2 has submitted that respondent No.2 was arrested on 28.10.2015 and he was identified by complainant on the same date as per list of details of witnesses. He has further submitted that there is no statement of record regarding TIP on 28.10.2015, even if at all the things are taken together still the role of the respondent No.2 is that of catching hold of the injured person. There is no criminal record of present respondent No.2 nor there is any allegation or statement of any witnesses against the present respondent No.2. There is no independent statement of any eye witness that could show the present respondent No.2 name in the statement that he was involved in the incident.
24. In the instant case the learned Trial Court while granting bail to the respondents, i.e. (1) [ENTITY], (2) [ENTITY], (3) [ENTITY], (4) [ENTITY] and (5) [ENTITY], considered two aspects:-
i. That the respondents were in custody since about 1 1/2 years and trial is not likely to be concluded in near future;
ii. Co-accused ([ENTITY]) was already granted bail vide order dated 27.02.2017.
and on the question of parity the respondents were granted bail.
25. The Trial Court was under the knowledge of its previous order dated 27.02.2017 of granting bail to one of the co- accused- [ENTITY] which was under challenge by the complainant- [ENTITY] before this Court and the Trial Court in haste passed the impugned order dated 24.04.2017 on the ground of parity. The relevant para of the impugned order is reproduced as under:-
"15. Though, Ld. Counsel for the complainant as well as Ld. Spl. PP argued that no parity could be granted to the present accused persons as the order granting bail to co-accused [ENTITY] is under challenge before Hon'ble High Court of Delhi, however not filed any order which could even remotely suggest that this court restrained from acting on that order."
26. Subsequently, this Court vide order dated 31.05.2017 set aside the Trial Court's order dated 27.02.2017 which is reproduced as under:-
IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON : MAY 19, 2017 DECIDED ON : MAY 31, 2017.
[CASE NUMBER] & [CASE NUMBER] [ENTITY] Petitioner Through : Mr.[ENTITY], Advocate with Mr.[ENTITY], Mr.[ENTITY], Mr.[ENTITY] & Mr.[ENTITY], Advocates. versus [ENTITY] & ANR. Respondents Through : Mr.[ENTITY], APP with Insp.[ENTITY]. Mr.[ENTITY], Sr.Advocate with Mr.[ENTITY] & Mr.Shri [ENTITY], Advocate for R2. CORAM: HON'BLE MR. JUSTICE [ENTITY], J.
1. The instant petition under [SECTION] read with [SECTION] [ACT] has been preferred by the petitioner-[ENTITY] to challenge the legality and correctness of an order dated 27.2.2017 of learned Additional Sessions Judge in FIR No.1187/2015 registered under [SECTION] [ACT] at Police Station Hauz Khas whereby the respondent No.2-
[ENTITY] (hereinafter referred to as 'the respondent') was granted regular bail. The petition is contested by 'the respondent'.
2. I have heard the learned counsel for the petitioner, learned APP and learned Senior counsel for 'the respondent' and have examined the file. Undisputedly, 'the respondent' is facing trial in case FIR No.1187/2015 registered under [SECTION] [ACT].
3. Briefly stated the facts as projected in the charge-sheet are that on 22.10.15 on receipt of DD No.10A regarding admission of injured [ENTITY] and [ENTITY] at Trauma Centre, AIIMS, ASI [ENTITY] went there and lodged First Information Report after recording petitioner's statement. The petitioner informed that on 21.10.2015, he along with his friends [ENTITY], [ENTITY], [ENTITY] (since deceased) and [ENTITY] had gone to Shanghai Club in two cars i.e. Santro and Honda Civic at 12.00-12.15 (night). During dance on the floor of the club, the petitioner's hand stuck with an individual to whom he said 'sorry'. The said individual abused and boosted him if he did not know him. The matter was pacified by the bouncers. Thereafter, they came out of the club and reached IIT Gate in cars. The petitioner further disclosed that he found his mobile to have fallen during quarrel. He along with his friends [ENTITY], [ENTITY] and [ENTITY] went back in Santro car to the club. When they reached near the club at some distance before it, he found that a Mercedes and EON car had blocked the road; Bolero car was parked on the road-side. When they asked them to remove the car, one of the boys with whom an altercation had taken place in the club, threatened to teach them lesson as they were the individuals who had misbehaved in the club. Thereafter, all the 7/8 assailants started beating them. Out of them, one brought a rod from the car and started hitting [ENTITY]. When he intervened to save [ENTITY], they also made him to fall on the road. One of the assailants lifted a cemented brick and hit him on his head. They all ran towards different directions to save themselves leaving Santro at the spot. He further informed that when he returned to take back his car, he saw [ENTITY] lying at the spot unconscious; he had sustained various injuries on the body. He and his friend [ENTITY] put [ENTITY] in Santro and took him to AIIMS Trauma Centre. The complainant gave description of the assailants in the complaint. A case under [SECTION] [ACT] came to be registered.
4. During the course of investigation, statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] conversant with facts were recorded. [ENTITY]ment of [ENTITY] and [ENTITY], Managers of the club, were also recorded. CCTV footage of the camera installed at the spot was viewed; footage was obtained and photographs were developed. [ENTITY]'s statement could not be recorded as he remained unfit throughout and finally succumbed to the injuries on 26.10.2015.
During investigation, 'the respondent' and his associates were arrested and their disclosure statements were recorded. Certain recoveries were effected at their instance. The respondent and his associates declined to participate in Test Identification Proceedings. Upon completion of investigation, a charge-sheet was filed against all of them including 'the respondent' for commission of offences under [SECTION] [ACT]; charge-sheet against [ENTITY] was prepared under [SECTION] [ACT].
5. By a detailed/comprehensive impugned combined order, the Trial Court ordered to frame charge against all for commission of offence under [SECTION] [ACT]; charge under [SECTION] was framed against [ENTITY].
The Trial Court noted in para 35 of the order that at the time of framing of charge, the court has to satisfy itself whether a prima facie case is made out for proceeding further or not. The court at this stage is not meant to meticulously weigh the evidence. Even a strong suspicion founded upon the material is sufficient for framing of charge, it is not open to the court at this stage, to evaluate the material to bring home the guilt of the accused. It is sufficient if the material on the record supports a triable issue. Court is not expected to go into the probative value on record, nor required to discuss every material placed before it by the police along with the charge-sheet.
It was further observed that there were specific roles assigned to the assailants. Various discrepancies in the prosecution case pointed out by the learned counsel for the accused persons regarding the non-disclosure of name of the accused in the FIR recorded after 10 hours of the incident; the non-placement of the CCTV footage of the CCTV installed inside the club to show who was the aggressor to the said scuffle in the club and to show whether infact any mobile phone of injured [ENTITY] had fallen during that scuffle or not; the CCTV did not also corroborate the statement of the witnesses that the cars of the accused persons were blocking the road and it also did not suggest that A-4 had apparent role in inflicting injuries to the injured as well as to the deceased, could not be appreciated at this stage, despite the fact that these had not been noticed in the CCTV footage. The court further noted that there were categorical statements of eye witnesses and other witnesses regarding the involvement of 'the respondent' besides other accused persons in inflicting injuries to the injured [ENTITY] and [ENTITY] (deceased). It was further noted that the statements of witnesses coupled with CCTV footage suggested that the accused persons had shared common intention formed at the spur of moment to kill [ENTITY] and cause injuries to the complainant [ENTITY] and the said fact also stood corroborated from the MLC where the complainant [ENTITY] had suffered head injuries and as per post-mortem report, the deceased had sustained multiple injuries on the head. The accused person's contention to frame under [SECTION] [ACT] was declined. It is unclear if the order on charge has been challenged by 'the respondent' or his associates.
6. By the said order, 'the respondent' was, however, granted regular bail. The Trial Court was of the view that crux of CCTV footage was deciphered by the Investigating Officer in the charge-sheet and no role was assigned to 'the respondent' in the crime therein. Besides it, there were other discrepancies as discussed at the time of consideration of charge which were relevant to be taken into consideration for grant of bail. Moreover, 'the respondent' was in custody since 31.10.2015.
7. Learned counsel for the petitioner urged that the impugned order granting bail to 'the respondent' in a gruesome murder cannot be sustained. The petitioner and his friend [ENTITY] were mercilessly beaten by 'the respondent' and his associates. The incident was witnessed by many eye witnesses who have identified 'the respondent' and his associates to be the perpetrators of the crime. In their statements [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and the petitioner [ENTITY] have categorically implicated 'the respondent' and his friends and have assigned specific and definite role to them in the crime. The crime weapon i.e. baseball bat has been recovered at the instance of 'the respondent' pursuant to his disclosure statement made. Clothes which the respondent was wearing at the time of crime have been seized and the FSL report is awaited. CCTV footage installed at the place of occurrence, records presence and active participation of all the accused persons including 'the respondent' in the incident. The learned Trial Court did not appreciate the specific allegations, statements recorded under [SECTION] [ACT] and the gravity of the offence. The Trial Court granted regular bail to 'the respondent' in haste and discretion was not exercised in judicial manner. The complainant was not given an opportunity to assist the court on the factual matrix of the case.
8. Learned Senior counsel for 'the respondent' urged that as per CCTV footage, 'the respondent's presence was not found at the spot. The complainant [ENTITY] in his initial statement dated 22.10.2015 did not name 'the respondent' to be one of the assailants; he did not mention if any baseball bat was used in inflicting injuries to him or the deceased. Subsequently, in his supplementary statement recorded on 1.11.2015, the complainant made vital improvements and attributed a definite role to A-4 to have inflicted injuries with baseball bat. He further urged that as per CDR record, complainant [ENTITY]'s presence was actually at Taj Apartments, Factory Road, Ring Road at 1:37:17 a.m. He further urged that CCTV footage showed that Mercedes car entered the lane only at 1:37:55 a.m. As per CCTV footage, relied upon by the prosecution, the Mercedes car entered the lane of incident at around 1:37:56 a.m. and stood at a distance of 20 meters away from the spot of the brawl. In the Mercedes car, 'the respondent' was seen with a girl. However, the police did not try to identify the said girl. At around 1:39:34 a.m. the said Mercedes car driven by 'the respondent' was seen exiting the lane of the incident. CCTV footage captured the entire assault and it is clear from the said CCTV footage that no one had used the baseball bat in committing the assault. The Mercedes car allegedly driven by 'the respondent' was recovered at the instance of co-accused [ENTITY] and the baseball bat shown to have been recovered at 'the respondent's' instance did not have blood stains or finger prints. Similarly, clothes allegedly recovered from 'the respondent' did not contain any blood stains.
9. Learned Senior counsel urged that the discretion has been exercised judiciously by the Trial Court and 'the respondent' was in custody for the last about 16 months. The occurrence had taken place at the spur of the moment and there was no preplan to commit [ENTITY]'s murder.
10. 'The respondent' and his associates/co-accused are involved in a very heinous and gruesome murder whereby [ENTITY], an unarmed individual, was brutally beaten to death over a trivial issue. After beating, he was disrobed and the body remained lying naked at the crime spot. He became unconscious after sustaining multiple injuries on various body organs and was not fit to make statement. Due to forceful blows, [ENTITY], a young boy, finally succumbed to the injuries on 26.10.2015. As per post-mortem examination report, he had suffered 21 injuries on various body parts including vital ones. The occurrence took place on the night intervening 21/22.10.2015. In the complaint forming basis of the FIR, the complainant gave detailed account of the incident and informed the police as to how the assailants, seven to eight in number, had inflicted injuries to him and [ENTITY] over a scuffle taken place in Shanghai Club. He further disclosed that when they had returned to the spot to search mobile, a Mercedes, EON car had blocked the road and a Bolero Car was parked on the side of the road. He took the victim to AIIMS Trauma Centre. Presence of the Complainant [ENTITY] at the spot can't be suspected or doubted, he being injured himself.
11. Soon after the lodging of the FIR, statements of various witnesses were recorded under [SECTION] [ACT] [ENTITY] corroborated the complainant's version and stated that on return to the club to take back [ENTITY]'s mobile, they saw that an EON car and Mercedes Car had blocked their way. When they asked for removal of the car, the occupants started quarreling with them. One of them had a baseball bat and the other was carrying an iron-rod. They were calling each other with the name of '[ENTITY]', '[ENTITY]', '[ENTITY]', '[ENTITY]', '[ENTITY]' and '[ENTITY]'. Specific role was assigned to each of the assailants. Similarly [ENTITY], [ENTITY], [ENTITY] and [ENTITY] have supported his version. After considering arguments from the both sides, charges under [SECTION] [ACT] were framed against 'the respondent' and the others.
Undisputedly, Mercedes car was seen at the spot at the time of occurrence in CCTV footage. Specific query was raised as to whom the said car belonged. It was fairly informed by the learned Senior counsel that it belonged to 'the respondent'. When inquired as to whether 'the respondent' had reached the spot in the said Mercedes, the answer was in affirmation. Respondent's only contention is that the said Mercedes car was away at a distance of 20 meters from the spot and he did not reach the place of occurrence; did not participate in the quarrel and no role was played by him.
Identity of the girls present in the car has not been disclosed even by 'the respondent' who is expected to know it. All the assailants were together in the club when the scuffle had taken place over a trivial issue. The complainant and the other eye witnesses in their statements have categorically identified 'the respondent' and others to have participated in the infliction of injuries to the petitioner and deceased [ENTITY] with various weapons/objects. 'The respondent' and the co-accused declined to participate in the Test Identification Proceedings. Certain recoveries are stated to have been effected at the instance of 'the respondent' and others. Nothing is on record to ascertain at this stage if after the initial scuffle in the club, 'the respondent' had left the spot or had not accompanied the co- accused. No explanation has been offered as to why 'the respondent' had arrived at 1:37:55 a.m. in Mercedes car near the spot. It cannot be believed that 'the respondent' after witnessing the horrible crime nearby would not intervene or participate or that he will remain a mute spectator and would not come out of the Mercedes or would conveniently leave the spot without demur or reaction. [ENTITY]ments of eye witnesses cannot be ignored or brushed aside at this stage.
12. The learned Trial Court while granting bail put great emphasis on CCTV footage to conclude that 'the respondent' was not involved in the incident and he did not play any role, whatsoever. The conclusion arrived to grant bail is presumptive. At the stage of granting bail, a minute examination of evidence and elaborate documentation of the merits of the case was not to be undertaken. In [PRECEDENT], it was held that at the stage of granting bail, a detailed examination of the evidence and elaborate documentation of the merits of the case has not to be undertaken. What the Additional Sessions Judge had done, in the order dated 11.9.2000, was to discuss the merits and demerits of the evidence. That was what was deprecated. It was further observed that the High Court has correctly not gone into the merits and demerits of the matter. The High Court has noted that evidence prima facie indicated demand of dowry. The High Court has briefly indicated the evidence on record and what was found at the scene of the offence. The High Court has given very cogent reasons why bail should not have been granted and why this unjustified erroneous order granting bail should be cancelled.
In the instant case, the Trial Court had found 'the respondent' and others, prima facie, guilty for committing murder but, strange enough opted to grant bail to 'the respondent' relying upon CCTV footage. I have examined/viewd the CCTV footage/CD provided by the learned counsel for 'the respondent' in the computer in chamber. Seemingly, the footage recorded in the CCTV did not cover the entire place of occurrence. It was a revolving camera moving horizontally and vertically. Possibly, it could not capture the whole incident from all angles at the same time. In the CCTV footage, Mercedes car is seen to have arrived at the spot at 1:30:26. It remained at the spot subsequent to it. At 1:39:34, the Mercedes is seen leaving the spot by reversing it. 'The respondent' is seen entering into the Mercedes. It is, however, not clear as to when the said individual (the respondent) had come out of the said Mercedes. The petitioner has also placed on record photographs developed from the footage recorded in the CCTV. In photographs No.1, 2 and 4, 'the respondent' is indicated inflicting injuries to the victim along with others at 1:37:30; 1:37:31; and 1:37:31 respectively.
In photograph No.3, Mercedes is seen at the spot at 1:34:49. In photo No.5 'the respondent' is seen entering the Mercedes at 01:38:29. It belies the respondent's contention that the Mercedes entered for the first time in the lane of the occurrence only at 1:37:56. In photos Mark 'A'and 'B'the respondent's car is seen at the spot at 01:30:41 and 01:31:50 too.
13. This Court is conscious that cancellation of bail is a serious matter. Bail once granted can be cancelled only when there exist very cogent and overwhelming circumstances. It is settled law that parameters for grant of bail and cancellation of bail are different. However, if the Trial Court while granting bail acts on irrelevant materials, bail can be cancelled. The bail can be cancelled even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court would be justified in cancelling the bail. Such orders are against the well recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to temper with the evidence, to flee from justice etc. would not deter the Court from cancelling the bail ('Kanwar [ENTITY] Meena vs. [ENTITY] of Rajasthan & Anr.', AIR 2013 SC 296).
14. In [PRECEDENT] also the Supreme Court held that where in a perverse order granting bail is passed in a heinous crime of the nature of causing dowry death ignoring material and evidence on record and that too without giving any reasons, bail can be cancelled. Such an order would be against the principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society.
Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.
15. In Gobarbhai Naranbhai Singala vs. [ENTITY] of Gujarat and Ors. (2008) 3 SCC 775, the Supreme Court held that the object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused from tempering with the evidence in the heinous crime. When the basic requirements necessary for grant of bail are completely ignored by the High Court, the Apex Court would be justified in cancelling the bail. In the said case, the accused' custody for more than two years was not considered to be tenable ground to grant bail. Sixteen months incarceration, in the present, case was also not a valid consideration to grant bail to 'the respondent' considering the gravity of the offence.
16. During arguments, it was inquired if the other assailants were in custody or on bail. It was informed by the learned counsel for the petitioner that the other assailants/accused have also been granted bail on parity. The impugned order reveals that apprehension was raised that offence committed was heinous in nature and there was every likelihood that 'the respondent' would misuse the liberty of bail and threaten the witnesses. This aspect was not taken into consideration while granting bail.
17. Since the Trial Court, prima facie, found 'the respondent' and others to have committed the offence under [SECTION] [ACT] with the aid of [SECTION] [ACT], grant of bail to 'the respondent' merely because of certain discrepancies, cannot be justified.
18. Resultantly, the petition is allowed and the bail granted to 'the respondent' is cancelled. 'The respondent' shall surrender and appear before the Trial Court on 19th June, 2017.
19. Observations in the order shall have no impact on the merits of the case. These observations are only for the purpose of ascertaining if the bail granted to 'the respondent' was sustainbale or not.
20. Trial Court record (if any) along with the copy of the order for information be sent back forthwith.
([ENTITY]) JUDGE
27. The contention of the learned senior counsel for the respondents No 3, 4 and 5 that the existence of the impugned order dated 24.04.2017 was in the knowledge of this Court on 31.05.2017 loses its significance in presence of the present petition under [SECTION] [ACT] read with [SECTION] [ACT] filed by the petitioner/[ENTITY].
28. Further, the plea of the learned senior counsels for the respondents that the respondents remained in judicial custody for more than one and half years and the trial will take some time ipso facto is not sufficient ground for grant of bail to the respondents. Reliance is placed on the judgment of the Apex Court in Gobarbhai Naranbhai Singala vs. [ENTITY] of Gujarat and Ors.; (2008) 3 SCC 775.
29. The contention of the learned counsel for the respondent No.2 that the name of the respondent No.2 [ENTITY] till date is nowhere in the statement under [SECTION] [ACT] of the witnesses is incorrect as the respondent No.2- [ENTITY] is named in the statement of the witness [ENTITY] under [SECTION] [ACT] and it is not necessary that [ENTITY] is specifically stated in the statement under [SECTION] [ACT] of each and every prosecution witnesses.
30. However, in the statement under [SECTION] [ACT] of the witnesses, at the time of the incident the accused persons were calling each other by the name of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] which includes the names '[ENTITY]' and '[ENTITY]' who are the two [ENTITY], i.e [ENTITY] (respondent No.2 herein) and [ENTITY] (respondent No.4 herein) in the present case.
31. Instant is a case where initially FIR No. 1187/2015 was registered against unknown persons on the statement of one [ENTITY]/complainant wherein the place of incident and the manner of incident taking place is detailed in his statement dated 22.10.2015. The said complainant in his statement mentioned that on 21.10.2015 he along with his friends [ENTITY], [ENTITY], [ENTITY] and [ENTITY] visited Shanghai Club, Hauz Khas in two separate cars, i.e. Santro No.- UP 16AM 6317 and Honda Civic No.- DL 7CF 4118, at around 12:00- 12:15 (night) and while dancing in the said club his hand struck with an individual/person to whom he apologised. On this the said person replied "doesn't he know who he is?" and a quarrel started between them. Thereafter, the said person took a glass from his friend and hit on the person of the complainant- [ENTITY], upon which the bouncers/security persons of the club sent [ENTITY] and his friends out of the club. Further, when the complainant-[ENTITY] and his friends reached near IIT Gate, he realised that he is not possessing his mobile phone which might have fallen during the scuffle at the Shanghai Club and then he along with [ENTITY], [ENTITY] and [ENTITY] came back in Santro car to the Shanghai Club, Hauz Khas where just some distance ahead they saw a Mercedes and EON car had blocked the road and a Bolero car was parked on the side of the road. On this they requested the occupant of the said car to clear the way. One of the occupant of the car was the same person with whom the complainant-[ENTITY] had a quarrel in the Shanghai club and the said occupant threatened to teach them a lesson. On this a quarrel started and the 7/8 assailants started beating them, one of the assailant brought an iron rod from his car and started hitting [ENTITY] and when the complainant intervened to save [ENTITY], they also made him to fall on the road. Thereafter, one of the assailant picked a brick and hit the complainant on his head and blood started oozing out of his head and they all ran in different directions to save themselves. After some time when the complainant came back to take his Santro car he saw [ENTITY] lying at the spot unconscious and had sustained multiple injuries on his body. Thereafter, he along with [ENTITY] took [ENTITY] in his Santro car for treatment at AIIMS Trauma Centre and also got himself admitted. But [ENTITY] died on 26.10.2015 and during the relevant period he remained unfit for statement.
32. However, subsequent statements dated 01.11.2015 and 06.11.2015 of the complainant- [ENTITY] were also recorded on the material facts developed during the course of the investigation wherein he identified the accused persons, i.e. [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], and attributed their specific role.
33. The statement under [SECTION] [ACT] of the other eyewitnesses, i.e. [ENTITY] and [ENTITY], who were accompanying the complainant- [ENTITY] in the Santro car to the place of the incident for the purpose of fetching the complainant's mobile phone were also recorded where in [ENTITY] corroborated the complainant's version and has further disclosed the fact that during the course of quarrel the accused persons were calling each other by the name of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY].
34. Similarly statement under [SECTION] [ACT] of the other eyewitnesses [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were also recorded who also supported the version of the complainant- [ENTITY] and eye witness [ENTITY].
35. During the course of investigation statement under [SECTION] [ACT] of the Managers of the Shanghai Club, Hauz Khas, i.e. [ENTITY] and [ENTITY], were also recorded and their statements also supported the version of the complainant- [ENTITY] and eye witness [ENTITY]. The factum of disclosing the names of the accused persons being their regular customers is disclosed by the Managers of the club in their statement under [SECTION] [ACT] which also supports the version of the complainant. The said factum of the incident is also verified during the course of investigation through CCTV footage. Further, one of the injured [ENTITY] (since deceased) died on 26.10.2015 in the hospital itself and in his post mortem report there were 21 injuries on the body of the deceased and the doctor opined the cause of death "Craneocerebral damage due to head injury (Injury no. 1,2,3) which are sufficient to cause death. All injuries are anti mortem in origin caused by blunt force/impact".
36. The witnesses to the incident are [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] whose statement under [SECTION] [ACT] are coming directly against the present respondents along with the co-accused- [ENTITY]. The statement under [SECTION] [ACT] of the Managers of the Shanghai Club, Hauz Khas, i.e. [ENTITY] and [ENTITY], are also coming against the present respondents along with the co-accused person- [ENTITY].
37. The statement of the witnesses, i.e. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY], to the incident as well as the statement of the Managers of the Shanghai Club, i.e. [ENTITY] and [ENTITY], corroborates to the incident an further corroboration is made by CCTV footage and it is an admitted fact coming on record that [ENTITY] (since deceased) died in the AIIMS hospital on 26.10.2015 who was having multiple injuries on his person.
38. The Court below while granting bail to the present respondents considered on two aspects. Firstly, that the respondents herein were in custody since about 1 1/2 years and trial is not likely to be concluded in near future; Secondly, co- accused ([ENTITY]) was already granted bail vide order dated 27.02.2017, which ipso facto does not justify for grant of bail to the present respondents particularly when the Court below was in the knowledge that the co-accused- [ENTITY]'s bail was challenged before this Court and the Court below in haste granted bail to the respondents herein, i.e. (1) [ENTITY], (2) [ENTITY], (3) [ENTITY], (4) [ENTITY] and (5) [ENTITY], basing on the basis of the bail of co-accused- [ENTITY] which was on the basis of certain discrepancies which was not applicable to the present respondents.
39. Consequently, I set aside the impugned order dated 24.04.2017 passed by the learned Additional Sessions Judge-02, (South) Saket Courts, New Delhi in FIR No. 1187/2015 registered under [SECTION] [ACT] at Police Station Hauz Khas. Reliance is placed on the judgements of the Apex Court in cases Kanwar [ENTITY] Meena vs. [ENTITY] of Rajasthan & Anr.; AIR 2013 SC 296 and [PRECEDENT].
40. Consequently, the present petition is allowed and disposed of in the above terms. The bail granted to the respondents, i.e. (1) [ENTITY], (2) [ENTITY], (3) [ENTITY], (4) [ENTITY] and (5) [ENTITY], are cancelled and the respondents shall surrender and appear before the Trial Court on 18.09.2017.
41. Observations made in this order shall have no effect on the merit of the case. One copy of this order be sent to the concerned Court.
[ENTITY], J SEPTEMBER 08, 2017/sr