The presumption of innocence at the pre-conviction stage and the consideration of the petitioner's role and period of incarceration were central to the court's decision.

JUDGEMENT

1. The present petition has been filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR No.

445/2016 under Sections 302/120B/34 IPC registered at Police Station Jamia Nagar.

VIKAS MAHAJAN, J.

BAIL APPLN. 1775/2023 Page 2 of 11

2. Vide order dated 30.05.2023, notice was issued in the bail application of the petitioner and the State was directed to file a status report. The State has filed a status report dated 28.08.2023, the same is on record.

3. The case of the prosecution as borne out from the status report is that on 16.05.2016, a PCR call vide DD No. 74-B regarding bullet fire was received in PS Jamia Nagar, which was marked to SI Pankaj Gulia, who proceeded to the spot. On reaching the spot i.e. Noor Nagar Extn. Johri Farm, SI Pankaj Gulia noticed pieces of glasses on the road and came to know that the injured had already been shifted to Holy Family Hospital.

4. On reaching the hospital, SI found injured Mohd. Moin Khan S/o Mohd Naaem Khan aged about 58 years was admitted vide MLC No.

C16/015226. The doctor mentioned alleged history as “while he was parking his car today at around 7:40 P.M. h/o sustained 2 suspected gunshot injury to (R) upper Anterior Chest and he became unconscious immediately first attended by his wife Nishant (all history given by his wife and daughter)”.

On examination “Unconscious L/E (R) upper Anv near II Inter coastal space just lateral to mild caluicle line wound 1X1 cm nearly triangle shape irregular margins inverted wound.” Thereafter, the SI tried to trace the eyewitnesses of the incident but in vain. In the meantime, at about 09:10

P.M. the doctor declared the patient as “dead”. It is in this backdrop, that the present FIR came to be registered.

5. During investigation, the petitioner and other co-accused namely, Ramesh Kakkar, Ram Phool, Saleem, Amir and Anwar Omaish were arrested on 18.05.216 and co-accused Bilal was arrested on 19.05.2016. During further investigation, it transpired that the deceased was an Assistant Law Officer / Estate Officer with the New Delhi Municipal Corporation and BAIL APPLN. 1775/2023 Page 3 of 11 the recovery suit of license fee in respect of petitioner’s Hotel namely, ‘The Connaught’ was pending in the office of the deceased. It also came to light that the petitioner tried to win over the deceased by offering him hefty bribe running into crores, but the same was refused by the deceased and he had decided to proceed against the petitioner as per law.

6. It is thus, the case of the prosecution that the matter between co- accused namely, Ramesh Kakkar and the NDMC was listed on 17.05.2016 for the parties to file written arguments and seeing no other option left, Ramesh Kakkar entered into a criminal conspiracy to eliminate the deceased and for this purpose he took the help of hired killers, which was provided by the co-accused Ram Phool, PSO of Ramesh Kakkar. Ram Phool (PSO) in turn gave the contract to his colleague Israil (petitioner herein), who further passed this contract to Saleem and Aamir. Aamir then arranged the meeting of Anwar Omaish and Bilal with the petitioner. Anwar Omaish shot the deceased on 16.05.2016, while he was riding the pillion and Bilal was driving the motorcycle.

7. Thereafter, during investigation, weapon of offence i.e. one pistol bearing no. RP 11671 along with one live cartridge was recovered at the instance of accused Bilal from his house, as the pistol was given by Anwar Omaish to Bilal to keep.

8. Mr. Kanhiya Singhal, learned counsel for the petitioner at the outset submits that the petitioner has been incarcerated since 19.05.2016 and as of 02.08.2023, the petitioner has spent more than 5 years in custody. He further submits that the prosec