A Single Judge Bench of Justice Anup Jairam Bhambhani observed on the purpose of prisons. It is to punish the convicts and not for detaining undertrials to send any ‘message’ to society.
Brief Facts of the Case
The arrest of Firoz Khan (applicant) took place on 03.04.2020 under case FIR No. 105/2020. Delhi police registered the FIR on 04.03.2020 under Sections 147, 148, 149, 427, and 436 of the IPC. The Delhi Police charged him for Arson, Rioting, and Unlawful Assembly. Complainant Md. Shahnawaz’s shop was set on fire and destroyed by rioters amidst riots in Dayalpur. The complainant in a statement said that he could identify 2 persons who set fire to his shop.
Constable Vikas was present at the spot during the incident and was an eye-witness in this case. He gave a statement to the Investigating Officer under Section 161 of Cr.PC. He saw the applicant and the co-accused at the time and place of the incident. The accused allegedly set fire to the shop and ran away. The rioters also destroyed the CCTV cameras. Thus, CCTV footage of the incident isn’t available.
Consequently, the State relied upon CCTV footage obtained from Rajdhani Public School. The footage allegedly shows the accused participating in the riots. However, the distance between the complainant’s shop and the school is around 400 meters. Furthermore, they are on two different sides of the road.
Contentions by the Applicant
Senior Counsel Ms Rebbecca John appeared for the applicant. She contended that the prosecution relied on the complainant’s statement which doesn’t identify or name the applicant in any manner. In the statement, the complainant states that he could identify 2 persons who set fire to his shop. He added that he could also identify the others if they were brought in front of him. However, even after the complainant’s statement, the police did not conduct a Test Identification.
Additionally, she stated that no evidence exists to prove the applicant’s presence at the incident site. She presented two arguments to support this contention. Firstly, there is no record to show that the eye-witness, Constable Vikas, was present at the incident site. Secondly, the CCTV footage relied upon by the State is not in the vicinity of the incident site. Thus, it is doubtful that the footage could capture the events around the shop.
The applicant also put forth that Md. Anwar (co-accused) has already been granted bail by the Sessions Court. He added that there is only one non-bailable offence from those alleged by the prosecution – Section 436 of the IPC.
Contentions by the State/Prosecution
APP Mr Hirein Sharma appeared for the State of NCT of Delhi. He opposed the grant of bail and argued that the complainant and the eye-witness Constable Vikas have identified the applicant. He added that the applicant is visible in the CCTV footage of the area.
On the basis of these points, the Learned APP argued that enough basis exists to hold the applicant in judicial custody. Further, the extra status report submitted by the prosecution stated:
“Granting of bail at this early stage may send an adverse message in the society and such crimes should not be allowed to happen in the national capital.”
The Court elucidated on the law of bail and the conditions on which undertrials are granted bail. It made reference to Ash Mohammad vs. Shiv Raj Singh & Anr., where the Supreme Court had explained the concept and fundamentals of bail. The aforementioned judgment has also been referred to in another case, Ram Govind Upadhyay v. Sudarshan Singh, to state that the Court’s power to grant bail is discretionary.
One should consider the following factors while hearing bail applications:
- Nature of evidence in support of accusations;
- Prima Facie satisfaction of the Court in support of the charge;
- Nature and Gravity of Accusation.
Further, the Court invalidated the contention of “granting bail to the applicant would send an adverse message to the society”. It held that this cannot be any reason to deny bail. It added that the Court may grant bail if satisfied that keeping the accused in judicial custody serves no purpose.
The Court granted regular bail to the applicant based on the factors and circumstances mentioned in the judgment. It also observed that prisons are to punish convicts, and not to detain undertrials so that a ‘message’ can be sent to the society. This kind of sentiment leads to overcrowding of jails. It treats undertrials with an inevitable impression of punishment even before trial.
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