Merely being a person of Bad Character cannot act as a bar for granting bail to innocent: The High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 27.05.2021 Pronounced on: 02.06.2021 Mr. Salim Malik Advocate ...... Petitioner BAIL APPLN. 1357 2021 Through Mr. Anuj Handa Special Public Prosecutor for State ...... Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT seeking bail in FIR No. 138 2020 under Sections147 148 149 186 188 353 435 302 201 120 B IPC & Section 27 of Arms Act registered at police station Welcome Delhi. In the FIR it is recorded that a GD entry 053 2020 dated 25.02.2020 was received from GTB Hospital that a person namely Mohd. Mudhasir aged around 30 years has been admitted in unconscious state and declared brought dead by the doctor. Upon receipt of above information SI Amit Bansal reached hospital and obtained MLC No. 549 09 2020 of deceased Bail Appln. 1357 2021 Mudhasir on which the doctor had opined that “patient brought dead in main casualty and unconscious unresponsive state”. Post mortem of the deceased was conducted on 27.02.2020 and in the post mortem report it is recorded that the deceased was brought to the hospital on 25.02.2020 at around 02:00 PM. All clothes except underwear and socks were blood stained. The cause of death was opined “shock as a result of ante mortem injury to head produced by projectile of firearm. Injury No.1 was ante mortem in nature and was sufficient to cause death in ordinary course of nature. Injury No.2 was caused by blunt force impact.” After obtaining copy of MLC post mortem report and completion of necessary formalities the FIR in question was registered on 21.03.2020 at the behest of SI Amit During investigation it transpired that on 25.02.2020 deceased Mudashir was brought to the GTB Hospital by his wife Ashiya who stated that he was found in unconscious condition in Gali No.1 at Kabir Nagar. On 28.03.2020 statement of wife of deceased Ashiya brother of deceased Yusuf Khan and father of deceased Yasin Khan was recorded. In her statement Ashiya wife of deceased stated that on 25.02.2020 some unknown persons had brought her husband to her gali and told her that he Bail Appln. 1357 2021 had sustained bullet injury near Shamshan Ghat and thereafter she took her husband to the hospital where the doctor declared him brought dead. In their statements brother of deceased Yusuf Khan and father of deceased Yasin Khan stated that on 25.02.2020 they had received information from Muzammil brother of deceased that Mudhasir had been admitted to hospital by his wife. Thereafter on 28.03.2020 FSL team inspected the scene of crime but no live or empty cartridge were recovered from the spot. During further investigation though no CCTV footage from the Shamshan Ghat nearby shops and houses could be obtained. However various images videos and recordings were obtained by Cyber Cell through social media and other sources and upon their scrutiny one video was found which clearly showed how the deceased had sustained bullet injury. On the basis of afore mentioned video on 06.04.2020 the secret informer identified Zahid the present petitioner who was a part of mob and can be clearly seen in the video standing with the deceased. On the same day i.e. on 06.04.2020 petitioner was apprehended from his house. During interrogation he disclosed that some of the local leaders asked the people to gather in front of Shamshan Ghat on 25.02.2020 and he was a part of the Bail Appln. 1357 2021 7. mob and since the police was asking from the other side not to make unlawful assembly as they were pelting stones on the police personnel. On 07.04.2020 the investigating team took petitioner to the crime spot for the purpose of pointing out memo and on the same day his statement under Section 161 Cr.P.C. was also recorded. On enquiry it revealed that the said video was recorded by ASI Satish and Constable Pushkar and Constable Sunder Beat Officers identified petitioner as being part of mob on the day of riots on 25.02.2020. Statement of ASI Satish and Constable Pushkar under Section 161 Cr.P.C. was recorded on 07.04.2020 whereas that of Constable Sunder was recorded on All the exhibits i.e. clothes mobile phone of deceased petitioner and other accused in this FIR case were seized and sent to FSL for analysis. As per call detail record of petitioner his location is at the spot of alleged incident on the said day. However the FSL report is still awaited. In aforesaid facts and circumstances of this case the petitioner is in judicial custody since the day of his arrest on 06.04.2020. 11. At the hearing learned counsel for petitioner submitted that the role attributed to the petitioner in the present case is far less than that of co Bail Appln. 1357 2021 accused Bilal who has already been granted bail by the trial court on 14.10.2020 and therefore petitioner also deserves bail on parity. 12. Learned counsel also submitted that there is an exorbitant delay of approximately one month in registration of the FIR in question and the entire prosecution case is based upon testimony of official witnesses Constable Sunder and Constable Pushkar who in their statements under Section 161 Cr.P.C. have identified the petitioner but did not make any PCR call regarding the alleged incident and thus their credibility is doubtful. It was next submitted that as per call detail record petitioner’s presence is shown in the area of riots but the fact remains that his minor children were missing and he had gone out of the house in their search. 14. Learned counsel further submitted that petitioner and deceased both were part of mob and were standing on the same side and it is highly unlikely that he would have an intention to kill the person standing by his side only and so invocation of Section 302 IPC is bad in law. 15. Lastly learned counsel submitted that petitioner is innocent and the only role played by him is that he was part of mob on the fateful day and trial will take time and so he deserves concession of bail. 16. On the contrary learned Special Public Prosecutor for State opposed Bail Appln. 1357 2021 the present petition and submitted that Constable Pushkar and Constable Sunder who were deployed as Beat Constable in the area have identified the petitioner having participated in the riots with the mob. 17. Learned Special Public Prosecutor further submitted that the incident occurred near Shamshan Ghat and the CCTV camera installed at the gate was not working for last many days and so efforts were made to collect the CCTV footage from cameras installed in nearby shops and local persons but either the cameras had been turned around or destroyed by rioters under pre planned modus. But thereafter various images video and recordings were collected from Cyber Cell Crime Branch through social media and other sources and this is how one video came across wherein it is clearly pictured how the deceased had sustained bullet injury. After analysis of the video and post mortem report it became clear that the deceased was shot by a person standing in his right side as the deceased had sustained injury in the right side on his head right above the ear. Since the petitioner can be seen standing right next to him therefore he along with other accused has been implicated in this case. 18. Learned Special Public Prosecutor further submitted that during interrogation petitioner has disclosed that he had thrown his clothes which Bail Appln. 1357 2021 he wore on the day of riots as he was apprehending his arrest. He also disclosed names of other persons as Imran @ Cheera and Asif as part of rioting mob. He further disclosed that at the relevant time Imran @ Cheera was having desi katta in his hands. It was next submitted that the call detail record of petitioner shows his presence at the place of incident and in the alleged video petitioner can be clearly seen pelting stones on the police personnel on duty. Learned Special Public Prosecutor submitted that petitioner Zahid is a Bad Characterof Welcome area and he is previously involved in 15 cases of murder attempt to murder robbery Arms Act etc. and therefore this petition deserves to be dismissed. In rebuttal learned counsel for petitioner submitted that out of the 15 cases pending against the petitioner he has already been discharged in 10 cases and the remaining pending against him are regarding Delhi riots only and petitioner will prove his innocence during trial in those cases. 21. The submissions advanced by learned counsel appearing from both the sides were heard at length and the material placed on record has been carefully perused. 22. The FIR in question pertains to unfortunate killing of Mohd. Bail Appln. 1357 2021 Mudhasir during riots on 25.02.2020. Allegedly petitioner was participant of unlawful assembly where a fire arm shot had hit the deceased on the right side of his head just above his ear and proved fatal for him. 23. While seeking bail petitioner is seeking parity with co accused Bilal who is said to have been granted bail by the court below on 14.10.2020. But a perusal of the order dated 14.10.2020 reveals that the trial court has granted interim bail of 45 days to Bilal on medical grounds of his wife. So this plea does not come to the rescue to petitioner in this petition. 24. However in the video footage played before this Court petitioner can be seen standing just ahead the wall with a large mob agitating shouting slogans and pelting stones on the other side and the deceased is standing right next to him. So as per the video petitioner’s exact position of standing is to the left of the deceased without any weapon in his hand and pelting stones upon other side of the group whereas the deceased was hit by a bullet shot in the right side of his head just above his ear. However the source of fire arm cannot be seen. 25. Pertinently petitioner and deceased both were part of same group and were agitating against the group standing on the opposite side. Though it is difficult to believe that when one group is agitating against other group Bail Appln. 1357 2021 a person from the same group will shot a person of his own group but at the same time possibility of an open fire shot from the same group also cannot be ruled out at this stage which is subject matter of trial. Moreover in the MLC or post mortem report it is not mentioned whether fire shot was from close range short range or distance. 26. Prima facie at best the role attributed to the petitioner appears to be that he was standing with the mob and participating in agitation and of pelting stones. He is not seen carrying any weapon etc. in his hands and in fact no recovery has been made at his instance. Moreover the source of fire shot is yet unknown and will be established by the prosecution during trial. The plea of petitioner whether or not offence under Section 302 IPC is made out against him or not is also subject to trial. 27. Admittedly petitioner did not abscond and was arrested from his residence which prima facie shows his innocence in the present case despite he being BC of area. Moreover it is not disputed that petitioner has already been discharged in 10 cases out of 15 cases in his credit. The remaining cases pending against him pertain to communal riots which took place in North East part of Delhi in February 2020. In view of the facts and circumstances of this case and the fact that Bail Appln. 1357 2021 charge sheet in this case has been filed but charge has not yet been framed and trial will take substantial time this Court is of the considered opinion that petitioner deserves bail. In view of the above without commenting on the merits of the case the petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.20 000 with one surety in the like amount to the satisfaction of the Trial Court Duty Magistrate while making it clear that any observation made herein shall not influence the prosecution case during trial. 30. The petitioner shall not directly or indirectly influence any witness and shall appear before the trial court as and when directed. 31. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance. JUDGE JUNE 02 2021 Bail Appln. 1357 2021 

Summary: Being a person of bad character with other cases pending against him does not justify the fact that he should not be granted bail in a case where the circumstances go in his favour and there is no established proof of his involvement in the crime. The aforesaid was the premise adopted by the single judge bench of the Delhi High Court comprising Justice Suresh Kumar Kait while adjudicating the case of Zahid v. State [BAIL APPLN. 1357/2021] on 2nd June 2021. The facts of the case are as follows. On 25th February 2020 a person named Mohd. Mudhasir was brought to GTB hospital by his wife-Ashiya and was declared “patient brought dead in main casualty and unconscious, unresponsive state”. The report of the post mortem was received on 25th February 2020 and the cause of the death was opined “shock as a result of ante mortem injury to head produced by projectile of firearm. Injury No.1 was ante mortem in nature and was sufficient to cause death in ordinary course of nature. Injury No.2 was caused by blunt force impact.”  Following this an FIR was registered on 21st march 2020 at the behest of SI Amit Bansal. Although no weapons or CCTV footage was recovered from the spot itself but a few images, videos and recordings were obtained by Cyber Cell through social media and other sources and upon their scrutiny one video was found which clearly showed how the deceased had sustained bullet injury. On the basis of afore-mentioned video, on 06.04.2020 the secret informer identified Zahid, the present petitioner, who was a part of mob and can be clearly seen in the video standing with the deceased. On the same day, i.e. on 06.04.2020, petitioner was apprehended from his house and is in judicial custody since 6th April 2020. The arguments presented by the counsel for petitioner state that his role is far less than the co-accused who has already been granted bail. It was also contended by them that there was an exorbitant delay of 1 month in registering the FIR and the entire prosecution case is based upon testimony of official witnesses Constable Sunder and Constable Pushkar who in their statements under Section 161 CrPC. have identified the petitioner but did not make any PCR call regarding the alleged incident, and thus, their credibility is doubtful. It was contended that since both the decease as well as the petitioner were on the same side and this weakens his intention to kill the deceased. On the other hand, the arguments presented by the Special Public Prosecutor stated that various images, video and recordings were collected from Cyber Cell Crime Branch through social media and other sources and this is how one video came across wherein it is clearly pictured how the deceased had sustained bullet injury. After analysis of the video and post mortem report, it became clear that the deceased was shot by a person standing in his right side, as the deceased had sustained injury in the right side on his head right above the ear. Since the petitioner can be seen standing right next to him, therefore, he along with other accused has been implicated in this case. Learned Special Public Prosecutor submitted that petitioner-Zahid is a Bad Character (BC) of Welcome area and he is previously involved in 15 cases of murder, attempt to murder, robbery, Arms Act etc. and, therefore, this petition deserves to be dismissed. This was rebutted by the counsel for petitioner by bringing to notice that he has already been discharged of 10 cases amongst the 15 and the remaining cases constitute petty offenses only. In view of the facts and arguments presented by both the sides, the bench gave a verdict that petitioner deserves a bail since “it has nowhere been stated in the post mortem report whether fire shot was from close range, short range or distance. Moreover, the petitioner was not even carrying weapons at that time. Admittedly, petitioner did not abscond and was arrested from his residence, which prima facie shows his innocence in the present case despite him being BC of area.”