BAIL APPLN. 2359/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 18^th JANUARY, 2022

IN THE MATTER OF:

+

BAIL APPLN. 2359/2021

MOHD. SHOAIB @ CHUTWA

..... Petitioner

Through

Mr. Salim Malik, Mr. Abdul Kadir,

Ms. Shavana, Mr. Sharukh and Mr.

Shamsad Khan, Mr. Bhim Kishore,

Advocates.

versus

STATE

..... Respondent

Through

Mr. Amit Mahajan, SPP with Mr.

Rajat Nair, SPP with Mr. Dhruv

Pande and Mr. Shantnu Sharma,

Advoctes with SI Surender Kumar,

PS Crime Branch.

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1.

The Petitioner seeks bail in FIR No.39/2020 dated 28.02.2020

registered

at

P.S.

Gokul

Puri

for

offences

under

Sections

147/148/149/302/436/427 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 a protest

against the Citizenship (Amendment) Act, 2019 (hereinafter, “CAA”) had

been taking place, and in relation to this, the Complainant (ASI Gajraj

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/000213

BAIL APPLN. 2359/2021

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Singh) received a PCR call vide DD No. 17A on 26.02.2020 that some

rioters were pelting stones on Street No.1, near Kabir Builder, Bhagirathi

Vihar. As per the FIR, the Complainant rushed to Bhagirathi Vihar where he

was informed by a Beat Constable who in turn was informed by some

people that the house of owner of Anil Sweets, which was located in

Chaman Park, Main Brijpuri Road, had been set ablaze by rioters.

4.

The FIR states that when the Complainant and the Beat Constable

reached the said house, they found the door to be broken and house to be

completely burnt. On inspecting the second floor, the Complainant noticed a

semi-burnt body lying in the corner. The FIR further states that the deceased

seemed to be about 20 years old, and that both the arms and legs of the body

were chopped off. It is stated that the chopped limbs could not be found, and

that on inquiry, it was found that the burnt body belonged to a person named

Dilbar who was a waiter at the sweet house. The body was then sent to GTB

Hospital and then to the GTB Hospital mortuary. The FIR states that it

appears that unknown persons belonging to one of the parties opposing and

supporting the CAA killed the deceased with a deadly weapon and then set

the house ablaze with the intent to destroy the evidence of the crime.

5.

It is stated that investigation is now complete and chargesheet has

been filed against the Petitioner on 04.06.2020 wherein the Petitioner has

been added. The chargesheet states that there is sufficient material to

proceed

against

the

Petitioner

herein

under

Sections

144/147/148/149/188/153A/302/201/427/436/120-B/34 of the IPC. A

supplementary chargesheet has also been filed on 07.07.2020.

6.

Mr. Salim Malik, learned Counsel for the Petitioner, has submitted

that the investigation is tainted and the Petitioner is an innocent person who

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/000213

BAIL APPLN. 2359/2021

Page 3 of 18

has been falsely implicated in the matter herein. He has submitted that DD

No. 17A was not included anywhere in the chargesheet.

7.

Mr. Malik has submitted that there is no clinching evidence against

the Petitioner and that even the initial statement of the eyewitness Himanshu

did not factor in the presence of the Petitioner herein. The learned Counsel

for the Petitioner has submitted that merely the statement of the eyewitness

cannot be relied upon to prolong the incarceration of the Petitioner. He has

further argued that the CDR which allegedly places the Petitioner in the

vicinity of the SOC is not conclusive as the Petitioner stays in that locality

and, therefore, it is inevitable that all the accused persons would