Owing to a prima facie opinion of the Court, petitioner accused under the Arms Act given concession of bail: Delhi High Court

Delhi High Court Tanveer Malik vs State on 26 April 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved Pronounced BAIL APPLN. 1002 2021 TANVEER MALIK ..... Through: Mr. Salim Malik Advocate Versus STATE ... Through: Mr. Manoj Chaudhary Special Public Prosecutor for State CORAM: HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT 1. Petitioner is accused in FIR No. 91 2020 registered at police station Dayalpur Delhi for allegedly committing offences under Sections 147 148 149 153A 505 436 307 120B 34 IPC and Sections 27 30 Arms Act. He is in judicial custody since 12.03.2020 in this case and by this petition he is seeking bail while claiming to be innocent and of having been falsely implicated in this case. 2. The FIR in question is fulcrum of riots which broke out in North East Delhi on 25.02.2020. Pertinently two more FIRs i.e. FIR No. 88 2020 and FIR No. 92 2020 both registered at police station Dayalpur Delhi pertaining to the incident of riots on 25.02.2020 are also pending to the credit of petitioner. However vide order dated 04.02.2021 petitioner has been granted bail in FIR No. 92 2020by this Court whereas in FIR No. 88 2020 he has been granted bail by the Court of Sessions vide order dated 30.05.2020. 3. In the present FIR petitioner had earlier approached this Court for bail and the same was dismissed by passing a detailed order on 24.09.2020 was also dismissed by this Court vide order dated 23.11.2020. Thereafter his third bail applicationwas not pressed by him while seeking liberty to approach the learned trial court for the relief claimed. However his bail application has been dismissed by the learned trial court vide order dated 12.03.2021rejecting his claim of parity in FIR No. 92 2020 registered at police station Dayalpur Delhi wherein he has been granted bail by this Court while holding "that there is no independent eye witness identification of applicant in case in FIR No. 92 2020 whereas in the present case besides being identified by injured Ajay he has also been categorically identified by public witnesses PW Harish Chander and PW Prashant Kumar." The learned trial court has further held as under: 19. In view of the categorial dismissal of regular bail application(s) of applicant thrice once by this Court vide order dated 24.08.2020 and thereafter twice by the Hon ble High Court vide order(s) dated 24.09.2020 and 23.11.2020 I do not find any change in circumstance(s) since the dismissal of last bail application of applicant by Hon ble High Court of Delhi. I further do not find any merit in the claim of applicant seeking bail on the ground of parity. As such considering the facts and circumstances of the case in totality I am of the considered opinion that the applicant is not entitled for bail in the matter at this stage. The bail application is accordingly dismissed." 4. Hence petitioner is before this Court to claim relief of bail. 5. During the course of arguments learned counsel for petitioner submitted that the technical evidence relied upon by the prosecution i.e. the call detail record and CCTV footage does not in any way establish presence of petitioner at the spot as on the day of incident petitioner was not in Delhi. Learned counsel submitted that out of 11 CCTV footage relied upon by the prosecution he cannot be seen in any of them and the phone location chart also does not show petitioner s presence at the spot. Further submitted that there are six accused persons in this FIR case however petitioner has no concern with them and his phone location is different from that of other accused persons. Next submitted that Constable Sodan and Constable Pawan in their statements have stated that there was a mob of 1000 to 1200 people on the day of incident and so their claim of having identified the petitioner amongst a huge crowd of mob cannot be 6. Learned counsel also submitted that as per the supplementary statement of injured recorded on 20.05.2020 he has identified the petitioner after seeing the photographs whereas after seeing the black and white dozier of petitioner he cannot be recognized. It was submitted that petitioner had surrendered himself on 12.03.2020 in FIR No. 88 2020 registered at police station Sunlight Colony Delhi and in the police station many of his photographs were taken and thereafter he has been falsely implicated in the present FIR case. It was submitted that recording of injured s supplementary statement is nothing but an attempt to fill in the lacuna by the prosecution. 7. Further submitted that as per site plan the distance between the place of incident and where petitioner was allegedly standing on the roof of Tahir Hussain is more than 600 meters and it is unbelievable that Constable Sudan and Constable Pawan who are eyewitnesses to the incident and have already known petitioner had not given any intimation to the police regarding him and other accused persons. 8. Lastly it was submitted that petitioner is a young boy of 23 years of age and has no involvement in the alleged incident and deserve bail in this case. 9. On the other hand the case put forth by the prosecution is that upon receipt of information from Sushant Trauma Center Civil Lines regarding gunshot injury having been received by a person vide DD No. 163A dated 25.02.2020 Investigating Officer SI Hukam Singh reached there and collected the MLC No. 1970 2020 of injured Ajay. However injured Ajay did not give statement on the said day and hence the FIR in question was registered on the basis of said DD entry. The statement of injured Ajay under Section 161 Cr.P.C. was recorded on 02.03.2020. 10. In his statement injured Ajay stated that on 25.02.2020 at around 4:00 PM when he came out from his house to purchase few household articles and reached near Lakhpat School Chand Bagh he realized that the riots broke out in the whole area and nearby areas. When he reached near Tahir Hussain s house he saw angry mob on the terrace of the said house who were pelting stones petrol bombs and firing on people crossing the main Karawal Nagar Road. Suddenly he was fired from a pistol like object which hit on his right shoulder and because he has been staying in the said area since his birth he could identify the said boy as Gulfam @ VIP and also identified other individuals who were part of mob and petitioner is allegedly one of those 11. Further submitted by learned Special Public Prosecutor for State that petitioner has been found promoting enmity and disharmony by rioting and charge sheet in this case has already been filed and trial is in progress and if released on bail he may threaten or manipulate the witnesses or tamper with the evidence and hence this petition be rejected. 12. Pertinently the factual matrix of the alleged incident the pleas urged by the petitioner to seek bail and the defence of prosecution as stated in the status report is similar as have been narrated in the order dated 04.02.2021 passed by this Court in Bail. Appln. 3864 2020 wherein petitioner has been granted bail in FIR No. 92 2020 registered at police station Dayalpur Delhi for similar offences. The distinction between the two FIR cases is that in the said case injured was one Prince Bansal whereas in the present case injured is Ajay. In both the cases the FIR was registered on the basis of respective DD entries and statements of both the injured persons were recorded on 02.03.2021. The eye witnesses in the present case namely Constable Sudan Constable Pawan Harish Chander and Prashant Kumar are also eye witnesses in the said case i.e. FIR No. 92 2020. 13. It is not in dispute that co accused Kasim and Nazim have already been granted bail by this Court vide orders dated 13.10.2020 and 11.11.2020 respectively in the present FIR i.e. FIR No. 91 2020 registered at police station Dayalpur. Further while granting bail to the present petitioner in FIR No.92 2020 this Court had observed as under: "11. In addition to above Ct.Sodan and Ct.Pawan were also present on duty on 25.02.2020 and have identified the present applicant along with other co accused persons. But the fact remains that the aforesaid Constables had not made any DD entry or any call to PCR by naming the petitioner or any other persons indulged in the crime at that point of time. It is also not in dispute that from 25.02.2020 to 02.03.2020 there is no proof on record that the police has taken any action or adopted any procedure to register FIR or to take down the statement of the injured except that on 29.02.2020 I.O visited the hospital however injured was not found." 14. Coming to the case in hand this Court is conscious of the fact that petitioner s earlier bail applications in the present FIR case have been rejected by this Court but the said orders were passed at the time when investigation was in progress and role of petitioner was yet to be established. Now investigation is complete and charge sheet qua petitioner and other accused persons has already been filed and trial shall take substantial time. At the time of considering bail application this Court is not required to dwell upon minute details on the merits of the case but has to form a prima facie opinion. Keeping in mind that the facts of the present case are similar to that of FIR No. 92 2020 registered at police station Dayalpur Delhi and that the questions raised in the said case and the present case are more or less similar and shall be answered during trial I have no hesitation to hold that petitioner now deserves concession of bail in the present case as well. 15. 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. 16. The petitioner shall not directly or indirectly influence any witness or tamper with the evidence and shall appear before the court as and when directed. 17. With aforesaid directions the present petition is allowed and accordingly disposed of while making it clear that any observation made herein shall not influence trial of the prosecution case. 18. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance. SURESH KUMAR KAIT) JUDGE APRIL 26 2021 r 

Summary: At the time of considering bail application, this Court is not required to dwell upon minute details on the merits of the case but has to form a prima facie opinion. This was said in the case of Tanveer Malik vs State[BAIL APPLN. 1002/2021] by Mr. Justice Suresh Kumar Kait in the High Court of Delhi  The facts of the case are that the petitioner is accused in FIR for allegedly committing offences under 147/148/149/153A/505/436/307/120B/34 IPC and Sections 27/30 of Arms Act. He is in judicial custody since 12.03.2020 in this case and by this petition, he is seeking bail while claiming to be innocent and of having been falsely implicated in this case. The petitioner contended that the technical evidence relied upon by the prosecution i.e. the call detail record and CCTV footage does not in any way establish presence of petitioner at the spot, as on the day of incident petitioner was not in Delhi. Secondly, it was contended that there are six accused persons in this FIR case, however, petitioner has no concern with them and his phone location is different from that of other accused persons. Thirdly, it was contended that Constable Sodan and Constable Pawan in their statements have stated that there was a mob of 1000 to 1200 people on the day of incident and so, their claim of having identified the petitioner amongst a huge crowd of mob cannot be accepted. It was further contended that recording of injured’s supplementary statement that he identified the petitioner after seeing the pictures of the riot shown to him is nothing but an attempt to fill in the lacuna by the prosecution The learned Special Public Prosecutor for State contended that the petitioner has been found promoting enmity and disharmony by rioting and charge sheet in this case has already been filed and trial is in progress and if released on bail, he may threaten or manipulate the witnesses or tamper with the evidence and hence, this petition be rejected The Court, after analysing the contentions of both the parties and settled position of law in the case, opined that “petitioner’s earlier bail applications in the present FIR case have been rejected by this Court, but the said orders were passed at the time when investigation was in progress and role of petitioner was yet to be established. Now, investigation is complete and charge sheet qua petitioner and other accused persons has already been filed and trial shall take substantial time. At the time of considering bail application, this Court is not required to dwell upon minute details on the merits of the case but has to form a prima facie opinion. Keeping in mind that the facts of the present case are similar to that of previous FIR, registered at police station Dayalpur, Delhi and that the questions raised in the said case and the present case are more or less similar and shall be answered during trial, I have no hesitation to hold that petitioner now deserves concession of bail in the present case as well”. Hence, the bail application was accepted.