Point of Law: Unlawful assembly - Grant of bail - No independent eye-witness identification of applicant.

JUDGMENT :

SURESH KUMAR KAIT, J.

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. 92/2020 [in Bail Application No. 3864/2021] by 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 [Bail Application No. 2664/2020]. Petitioner’s second bail application [Bail Application No. 3570/2020] was also dismissed by this Court vide order dated 23.11.2020. Thereafter, his third bail application [Bail Application No. 652/2021] was 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 12.03.2021 [in SC No. 70/2021] rejecting 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 applications of applicant thrice, once by this Court vide order dated 24.08.2020 and thereafter twice by the Hon’ble High Court vide orders dated 24.09.2020 and 23.11.2020; I do not find any change in circumstances 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 accepted.

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, h