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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, J.
Mohd Danish - Appellant
Versus
State (NCT Of Delhi) - Respondent
Bail Appln (Bail Application) No. 3550 of 2020
Decided On : 16-02-2021
BAIL - Communal Riots - Sections 186/353/332/323/109/144/147/148/149/153A/188/333/336/427/307/308/397/412/302/201/120-B/34 IPC read with Sections 3 & 4 PDPP Act and 25/27 Arms Act
Fact of the Case:
The petitioner, a cab driver, was arrested for his alleged involvement in communal riots in Delhi. He argued that the statements given to the police suffered from gross illegalities and were inadmissible as per Sections 161 and 162 of the Cr.P.C. He also contended that there was no recovery of weapons from him and that the case against him was unfounded. The prosecution alleged that the petitioner was actively involved in the riots and was responsible for the death of a police officer.
Finding of the Court:
The court found that the petitioner's location based on call detail records did not place him at the scene of the riots. It also noted discrepancies in the statements naming the petitioner and the lack of CCTV footage or viral videos implicating him. The court granted bail to the petitioner, stating that he was no longer required for investigation and that the trial would take substantial time.
Issues: The issues involved the admissibility of the petitioner's statements to the police, the lack of recovery of weapons, and the prosecution's allegations of the petitioner's involvement in the riots.
Ratio Decidendi: The court's decision was based on the lack of evidence placing the petitioner at the scene of the riots and the finding that he was no longer required for investigation.
Final Decision: The petitioner was granted bail on the grounds that he was no longer required for investigation and the trial would take substantial time.
JUDGMENT
Suresh Kumar Kait, J. - The hearing of the case was conducted through video conferencing.
1. The present petition has been filed by the petitioner under Section 439 Cr.P.C. for grant of bail in case FIR No.60/2020, for the offences punishable under Sections 186/353/332/323/109/144/147/148/149/153A/188/333/336/ 427/307/308/397/412/302/201/120-B/34 IPC read with Sections 3 & 4 PDPP Act and 25/27 Arms Act, registered at PS Dayal Pur, North East District, Delhi.
2. It is stated in the present petition that the petitioner is a Cab Driver by Profession and he is currently working with HCL Gurgaon on contractual basis. Petitioner used to be on night duty from evening till morning. He was attached with HCL through one vendor, namely, Ravi Tour and Travels for past six months.
3. Case of the petitioner is that one maternal aunt, one elder sister and maternal uncle of the petitioner reside in the Chandbagh area. The said maternal aunt is mother-in-law of the elder sister of the petitioner residing currently at C-89, Street No.1, Moonga Nagar, Karawal Nagar Road, Delhi-110094 while the maternal cousin named Ikram of the petitioner resides at Street No.3, Karawal Nagar Road, Chandbagh. On 23rd February, 2020, petitioner along with his cousin Ashu decided to leave for Chandbagh to pay a visit to the relatives. On said day, things were as usual calm and normal. It was only on 24th February that things started worsening up. Late mother (she was alive on that day) of the petitioner called and asked the petitioner to stay at maternal aunt's/elder sister's place till the things get normal and return home at Loni thereafter. On 25th February around 6:00 am in the morning, petitioner returned to his residence where his parents were residing, i.e. H. No.110, Gali No.3, Rabbani Masjid, Prem Nagar, Loni Ghaziabad, UP. However, on 10.03.2020 that petitioner got a call from one lady customer asking for petitioner's cab on monthly basis. Accordingly, petitioner left his residence at Loni to reach at the customer's location on 10.03.2020 and while petitioner was en-route, that he was confronted by Nandnagri Police Personnel. He was brought to Nandnagri Police Station and thereafter, he was taken to Crime Branch, Lodhi Road. Petitioner was arrested while being at work.
4. Mr. Salman Khurshid, learned Senior Counsel appeared on behalf of petitioner and submitted that there is no recovery from the petitioner which could connect him with the alleged charges in the present FIR. Alleged statement by the petitioner herein is false, fabricated and illegal. It is factually incorrect that petitioner deposed any information to the Police officials. He is educated only till class X. He was made to sign some plain papers which later found out to be disclosure statements attributed to him.
5. Further submitted that as per Section 162(1) Cr.P.C., no statement that has been given to the police official be signed by the person making it.
"162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose."
6. Therefore, the alleged disclosure statement suffers from gross illegality and it is in the teeth of Section 162(1) Cr.P.C. and cannot be relied upon at this juncture. Moreover, statement under Section 161 Cr.P.C. given to the police officials is not the substantive piece of evidence as held by Hon'ble Supreme Court speaking through Hon'ble Justice GP Mathur in case of Rajendra Singh vs State of UP, (2007) 7 SCC 378 :
"...7. ...A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub
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