The active participation of an accused in an unlawful assembly, as evidenced by their conduct, can lead to vicarious liability under Section 149 IPC, warranting denial of bail.

JUDGMENT

Subramonium Prasad, J. - The petitioner seeks bail in FIR No. 70/2020 dated 27.02.2020 registered at PS Bhajanpura for offences under Sections 147, 148, 149, 302, 307, 396, 436, 455, 201, 188, 34 of the Indian Penal Code, 1860 (hereinafter, 'IPC').

2. The FIR relates to the violence that took place in the National Capital Territory of Delhi in the month of February 2020.

3. The brief facts leading to the instant Bail Application are that on 25.02.2020, at around 11:00 A.M., the complainant had gone to purchase milk from a nearby shop when he received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in support of NRC and CAA. The crowd was chanting slogans of 'Jai Shree Ram'. The crowd later entered their house after breaking open the locks, and set it on fire. It is stated that the complainant's family members and employees rushed to the top floor of the house. The complainant's family members and workers were safely rescued from the roof of his residence, which was made possible by the rescue operation launched by the police in support with the locals of the vicinity.

4. It is stated that the complainant's mother, Smt. Akbari, who was 85 years old could not reach the rooftop due to her age. After extinguishing the fire, her body was found lying on a folding bed and was recovered from the second floor. She was taken to Guru Teg Bahadur Hospital, where she was declared brought dead vide MLC No. D-45. A Post Mortem was conducted at GTB Hospital itself and vide PM Report No. 345/2020 dated 28.02.2020, the cause of death was opined as Asphyxia as a result of a ante-mortem inhalation of smoke. It is further stated that the crowd looted Rs. 8,00,000/- in cash and a box containing gold and silver jewellery and other valuable articles from their residence 5. It is stated that the investigation of the said case was transferred from North East to Special Investigation Team-II, Crime Branch, Delhi and subsequently to Special Investigation Unit-I, Crime Branch, Delhi vide order No. 8266-74/AC-III/C&T/PHQ dated 27.02.2020 and No. 216/S)/DCP/Crime (SIU & ISC) dated 04.03.2020.

6. It is stated that the petitioner was arrested on 16.03.2020 and has been in custody since then. The chargesheet was filed on 07.06.2020 and on 06.04.2021 charges were framed by the Trial Court.

7. The petitioner had filed three bail applications before the Court of Sessions and subsequently vide orders dated 29.04.2020, 20.10.2020 and 02.11.2021 the same were dismissed by the Learned Judge of the Trial Court.

8. Mr. Pankaj Yadav, the learned counsel for the petitioner contended that the accused has been falsely implicated in the present matter and that there exists no evidence which can prove the connection of the Petitioner to the incident beyond reasonable doubt. He submitted that the FIR was registered on 27.02.2020, that is, two days after the incident occurred and the name of the accused is nowhere mentioned therein. He further submitted that the accused has no relation with any of the co-accused, the complainant and his family members and has no reason to cause them any harm.

9. The learned counsel for the petitioner submitted that the petitioner is not mentioned anywhere in the identification memo dated 10.03.2020. He submitted that Mohd. Asif also failed to mention the name of the petitioner in his statement under Section 161, Cr.P.C dated 10.03.2020, when he was shown the video clippings. He highlighted the fact that despite having enough opportunities to mention the petitioner before, the petitioner was named only on 15.03.2020 by Mohd. Saeed Salmani and his Mohd. Asif Salmani vide their witness statements.

10. Mr. Yadav further submitted that the witness statements were in contradiction to each other. For this, the learned counsel placed reliance on the statement of Mohd. Salmani dated 15.03.2020, who mentioned that the person wearing black clothes is the petitioner whereas the statement dated of