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IN THE HIGH COURT OF DELHI AT NEW DELHI
Asha Menon, J.
Sunny & Ors. - Appellants
Versus
State Of NCT Of Delh Asd Others - Respondent
Bail Appln. 1107/2022 and Bail Appln. 1108/2022
Decided On : 12-04-2022
BAIL - Non-compliance of Section 41(1)(a) of the Cr.P.C. - Arnesh Kumar (supra) - Munawar (supra) - [IPC, PDPP Act] - The court discussed the non-compliance of Section 41(1)(a) of the Cr.P.C. and the issuance of notice under Section 41A Cr.P.C. as mandated by Arnesh Kumar (supra) and Munawar (supra) judgments. The court emphasized the need for strict adherence to the directions in Arnesh Kumar (supra) and held that non-compliance would amount to contempt committed by the concerned Police Officer and would justify the release on bail of an accused.
Fact of the Case:
The applicants were accused in the same FIR registered under Sections 186/188/353/332/143/147/149 IPC and Section 3 of the Prevention of Damage to Public Property Act, 1984. The FIR was registered when a protest was held near the residence of the Chief Minister of Delhi despite the Deputy Commissioner of Police declining permission. The applicants were arrested and their bail applications were dismissed by the Duty Metropolitan Magistrate and the Additional Sessions Judge.
Finding of the Court:
The court found that the non-compliance of Section 41(1)(a) of the Cr.P.C. and the non-issuance of notice under Section 41A Cr.P.C. would amount to contempt committed by the concerned Police Officer and would justify the release on bail of an accused.
Issues: Non-compliance of Section 41(1)(a) of the Cr.P.C. and the issuance of notice under Section 41A Cr.P.C.
Ratio Decidendi: The court emphasized the need for strict adherence to the directions in Arnesh Kumar (supra) and held that non-compliance would amount to contempt committed by the concerned Police Officer and would justify the release on bail of an accused.
Final Decision: The court allowed the bail applications and granted bail to all the applicants on each of them furnishing a personal bond and a surety bond each for a sum of Rs.35,000/- to the satisfaction of the learned Ilaqa Metropolitan Magistrate.
ORDER
CRL.M.A. 6523/2022 in BAIL APPLN. 1107/2022, CRL.M.A. 6533/2022 in BAIL APPLN. 1108/2022, CRL.M.A. 6537/2022 in BAIL APPLN. 1111/2022, CRL.M.A. 6542/2022 in BAIL APPLN. 1113/2022, CRL.M.As. 6543/2022 in BAIL APPLN. 1114/2022, CRL.M.A. 6772/2022 in BAIL APPLN. 1148/2022, CRL.M.A. 6773/2022 in BAILAPPLN. 1149/2022 & CRL.M.A. 6625/2022 in BAIL APPLN. 1125/2022 (all for exemption)
1. Allowed, subject to just exceptions.
2. The applications stand disposed of.
BAIL APPLN. 1107/2022 & CRL.M.A. 6524/2022 (for interim relief), BAIL APPLN. 1108/2022 & CRL.M.A. 6534/2022 (for interim relief), BAIL APPLN. 1111/2022 & CRL.M.A. 6538/2022 (for interim relief), BAIL APPLN. 1114/2022 & CRL.M.A. 6544/2022 (for interim relief), BAIL APPLN. 1113/2022, BAIL APPLN. 1148/2022, BAIL APPLN. 1149/2022 & BAIL APPLN. 1125/2022
3. Since the eight applicants are accused in the same FIR bearing No.200/2022 dated 30th March, 2022 registered under Sections 186/188/353/332/143/147/149 IPC and Section 3 of the Prevention of Damage to Public Property Act, 1984 (for short PDPP Act'), Police Station Civil Lines, Delhi, all these applications shall be disposed of vide this common order.
4. The FIR was registered when a protest was held near the residence of the Chief Minister of Delhi (CM Residence for short) despite the Deputy Commissioner of Police, Delhi declining permission to the applicants to hold such a protest. It is also the case in the FIR that the applicants had jumped police barricades installed at the CM Residence and the same were broken and an attempt was made to force entry into the residence. The Police Officials, it is claimed, were obstructed and criminal force used on them and a few of them had sustained injuries.
5. It may be further noted that the Duty Metropolitan Magistrate had dismissed the bail applications of the accused persons on 31st March, 2022 and had remanded them to judicial custody. Similarly, the bail applications filed before the learned Additional Sessions Judge were also dismissed vide order dated 4th April, 2022.
6. Mr. Kirti Uppal, learned senior counsel for the applicant in Bail Application No. 1113/2022 submitted that following the judgment of the Supreme Court in Munawar Vs. State of M.P. 2021 (3) SCC 712, since the police had failed to issue a notice under Section 41A Cr.P.C., as mandated by the Supreme Court in Arnesh Kumar Vs. State of Bihar 2014 (8) SCC 273, the applicants ought to have been straightway admitted to interim bail. However their bail applications have been improperly rejected by the learned Duty Metropolitan Magistrate and the learned Additional Sessions Judge.
7. It is further submitted that the learned Additional Sessions Judge had in fact noticed in the order dated 29th March, 2022 (placed on record as Annexure A-3 in Bail Application No. 1107/2022) had observed that in fact the provisions of Section 41A Cr.P.C. had not been complied with by the Police, but found that an advisory to the Deputy Commissioner of Police to take departmental action was sufficient to meet the ends of justice. It was further submitted that under Section 41(1)(a) Cr.P.C. the Police could arrest a person immediately, if he was committing a cognizable offence in their presence.
8. Referring to the FIR, the learned senior counsel submitted that the allegations are that initially the protesters were sitting on 'dharna' in front of the I.P. College. They also had a tempo in their possession. Since the crowd was increasing and nearly 200 people assembled there, the Police placed barricades and crowds were repeatedly requested to desist from breaking the barricading. Thereafter, some of the protesters moved to wards the CM Residence to do 'gherao'. The police tried to stop them at the Flag Staff Road with barricades, but the protesters broke those barricades and moved further.
9. It is the contention of the learned senior counsel that when the two sets of barricades were jumped over by the protesters, cognizable offences under which the
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