IMPORTANT POINT
The significance of individual liberty balanced with societal order in considering bail applications.

JUDGMENT

AMIT MAHAJAN, J.

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking grant of regular bail in FIR No. 337/2022 dated 23.07.2022, registered at Police Station Seelampur for offences punishable under Sections 302/201/392/397/411/34 of the Indian Penal Code,1860.

2. The facts in brief which led to the registration of present FIR are as follows:

2.1. On 22.07.2022, information vide DD No.82 was received wherein the caller/complainant (Kasif Hasan) informed that Zakir Hussain (maternal uncle of the complainant) had not been answering calls for the past two to three days. Upon visiting his residence, the complainant noticed a strong and unpleasant smell emanating from Zakir Hussain's house.

2.2. On receiving the phone call, the police officials reached the spot, that is, Gali No. 7, Gautampuri, Delhi and on inspection, the double-door fridge, which was tied with a plastic rope was opened, where the dead body of Zakir Hussain was found.

2.3. The present FIR was registered on the statement of the complainant for investigation into offences under Sections 302/201 of the IPC.

2.4. In the post-mortem of the deceased, the cause of death was stated to be "shock as a result of craniocerebral damage consequent upon blunt force impact to the head" and time since death was stated to be about three days.

2.5. During the course of investigation, based on the footage retrieved from CCTV cameras which were installed on both sides of the building T-9, Gautampuri, it was found that on 21.07.2022 at about 12:54 hours, one person came to the deceased's house and left the gate opened, and at about 13:21 hours, another person entered the house and closed the gate. On further investigation, it was revealed by the complainant and Mohd. Muneer (son of the deceased) that the first person seen in the CCTV footage is Abid Hussain, who is the brother of the deceased.

2.6. Abid Hussain was apprehended on 23.07.2022. On interrogation, he admitted to the murder of his brother Zakir Hussain, with assistance from applicant. Abid also confessed to taking cash, jewellery, and property documents from Zakir's residence. Following Abid's disclosure statement, applicant was apprehended on the same day at Brahampuri Pulia, and subsequently arrested.

3. The chargesheet in the present case is filed before the Learned Trial Court, against the accused persons under Sections 302/201/392/397/411/34 of the IPC, and subsequently, charges have been framed.

4. The bail application preferred by the applicant before the learned Trial Court was dismissed by order dated 06.06.2023.

5. The learned counsel for the applicant submits that the chargesheet in the present case has been filed, and charges have been framed by the learned Trial Court. Hence, the custody of the applicant is not required.

6. The learned counsel submits that no direct role can be attributed to the applicant in committing conspiracy with the accused Abid Hussain to murder his brother. He submits that the applicant was arrested solely based on a disclosure statement made by the main accused namely, Abid Hussain.

7. The learned counsel submits that neither the Investigating Officer nor the witnesses were able to identify the applicant based on the CCTV footage, which is part of the evidence placed on record. He submits that the clothes worn by alleged person in the CCTV footage are different from what has been seized by the Investigating Officer.

8. Lastly, he submits that the applicant has been in incarceration since 24.07.2022, has clean antecedents and as per the nominal roll, his conduct has been satisfactory.

9. On the other hand, the learned Additional Public Prosecutor for the state submits that the allegations against the applicant are grave and serious and the defences taken by the applicant are a matter of trial and cannot be looked into at the time of deciding whether the applicant is entitled to be released on bail. He submits that the applicant is actively involv