Arun Kumar @ Arun Kumar Malik vs State

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Del) 1306

IN THE HIGH COURT OF DELHI AT NEW DELHI
Subramonium Prasad, J.
Shri Arun Kumar @ Arun Kumar Malik - Appellant
Versus
State - Respondent
Bail Appln. 2312 of 2021
Decided On : 01-02-2022

Advocates appeared:
Mr. Ashwin Vaish, Advocate, for the Appellant; Mr. Amit Prasad, Spp for the State; with Mr. Ayodhya Prasad, Advocate, and Si Santosh Gupta, Crime Branch Mr. Mehmood Pracha , Advocate, with Mr. Sanawar Choudhary and Mr. Jatin Bhatt, Advocate, for the Respondent.

Headnote:
BAIL - Offences under Sections 147, 148, 149, 302, 307, 396, 436, 455, 201, 188, 34 of the Indian Penal Code, 1860 (IPC) - Section 149 IPC, Section 437(1) CrPC, Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 - The court granted bail to the petitioner based on the absence of incriminating evidence, the completion of investigation, and the prolonged incarceration without a defined trial period. The court emphasized the need to balance personal liberty and public order, and considered the parameters for granting bail as laid down in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, and Mahipal v. Rajesh Kumar, (2020) 2 SCC 118.
Fact of the Case:

The petitioner sought bail in a case related to the violence in Delhi in February 2020, where the complainant's house was set on fire, resulting in the death of an 85-year-old woman and looting of valuables. The petitioner was arrested and had been in custody for almost 21 months.
Finding of the Court:

The court found that the petitioner's presence at the scene with a lathi was not sufficient to establish him as an active member of the unlawful assembly with the common intention to commit the offence of Section 302. It emphasized the need to balance personal liberty and public order, and granted bail based on the absence of incriminating evidence, completion of investigation, and prolonged incarceration without a defined trial period.
Issues: The key issue was whether the petitioner's presence at the scene with a lathi was sufficient to establish him as an active member of the unlawful assembly with the common intention to commit the offence of Section 302.
Ratio Decidendi: The court applied the principles laid down in Section 149 IPC, Section 437(1) CrPC, Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, and Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 to balance personal liberty and public order, and granted bail based on the absence of incriminating evidence, completion of investigation, and prolonged incarceration without a defined trial period.
Final Decision: The court granted bail to the petitioner with specific conditions, emphasizing that the observations made in the order are only for the purpose of grant of bail and cannot be taken into consideration during the trial.

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, around 11:00 AM., 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 an 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. 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.Theinvestigation was undertaken by Insp. Pankaj Arora.

6. The petitioner was arrested on 11.03.2020 and has been in custody since then. The chargesheet was filed on 07.06.2020 and on 06.04.2021, the charges were framed by the Trial Court.

7. The petitioner had filed Bail Application No. 399/2020 before the Court of Sessions Judge which was dismissed vide order dated 06.08.2020. Thereafter, another bail application vide IA No. 04/2021 in SC No. 17/2021 was filed before the Court of Sessions Judge which was subsequently dismissed vide order dated 29.04.2021.

8. Mr. Ashwin Vaish, 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 statements of the eye witnesses under Section 161 CrPC were recorded on multiple occasions. He submitted that particularly, the complainant, Mohd. Salmani, gave his statements on 07.03.2020, 08.03.2020 and 10.03.2020. It is only at a later date, that is around two weeks after the incident, that statement dated 09.03.2020 by Mohd. Aziz Hasan and statement dated 15.03 2020 by Mohd. Saeed Salmani was recorded and the name of the accused surfaced for the first time. He also submitted that the statements given by the daughters of the complainant, that is, Isha Salmani and Ayesha Salmani, who claimed that the accused was a part of the mob that lit the house on fire, were recorded on 18.05.2020, that is, two months after the incident. He submitted that despite the petitioner herein being the neighbour of the complainant's family, his name sur