2020 (5) TMI 706 - HC - Indian Laws

Seeking grant of regular bail - case of applicant is that he has neither been named in the FIR nor is there any allegation in the FIR nor any other material collected during investigation that would identify the applicant as one of the perpetrators of the offences alleged - HELD THAT - Prison is primarily for punishing convicts; not for detaining undertrials in order to send any message to society. The remit of the court is to dispense justice in accordance with law not to send messages to society. It is this sentiment whereby the State demands that undertrials be kept in prison inordinately without any purpose that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial the prosecution is unable to bring home guilt the State cannot give back to the accused the years of valuable life lost in prison. On the other hand an accused would of course be made to undergo his sentence after it has been awarded after trial. This court also cannot but notice that the offences under section 147/148/149 IPC arise in the context of an unlawful assembly which section 141 IPC defines as an assembly of 5 or more persons acting with unlawful purposes as defined in that provision; while in the present case only 2 persons appear to have been charged. Also the offences under sections 147/148/149/427 IPC are in any case bailable offences; and only the offence under section 436 IPC is non-bailable; and there is no material to support that offence that can be said to be clinching or unquestionable to say the least. While ordinarily this court would not have entered upon any discussion on the evidence at the stage of considering bail however here is a case where a purported unlawful assembly of some 250-300 persons is alleged to have committed offences; of which the police have picked-up only two one of them being the applicant. In this peculiar circumstance this court was compelled to sift the evidence only prima-facie and limited to cursorily assessing how the police have identified the applicant from that large assembly of persons. This court is conscious that judicial custody is the custody of the court; and the court will be loathe to depriving a person of his liberty in the court s name on the mere ipse-dixit of the State when it finds no substantial basis or reason for doing so. Application disposed off.

Summary

Issues Involved:
1. Identification of the applicant as a perpetrator.
2. Reliability of witness statements and CCTV footage.
3. Comparison of the applicant's bail status with co-accused.
4. Legal principles governing the grant of bail.

Issue-wise Detailed Analysis:

1. Identification of the Applicant as a Perpetrator:
The applicant sought regular bail on the grounds that he was neither named in the FIR nor identified in any material collected during the investigation. The complainant's supplementary statement did not identify the applicant. The State relied on the statement of Ct. Vikas and CCTV footage to identify the applicant. However, the complainant's statement indicated he could not contact the police and fled, contradicting Ct. Vikas's claim of being present at the scene.

2. Reliability of Witness Statements and CCTV Footage:
The State placed reliance on the supplementary statement of the complainant and the statement of Ct. Vikas. The complainant's supplementary statement mentioned identifying two persons in a video shown by the police but did not name the applicant. Ct. Vikas's statement claimed he saw the applicant committing the offences, which was contradicted by the complainant's statement. The CCTV footage from Rajdhani Public School was deemed unreliable as the locations were not in close vicinity.

3. Comparison of the Applicant's Bail Status with Co-accused:
The co-accused, Mohd. Anwar, had already been granted bail in related cases. The court noted that the applicant was involved in five FIRs related to the riots but had no previous criminal record. The State's contention that granting bail would send an adverse message was dismissed by the court, emphasizing that bail should not be denied to convey societal messages.

4. Legal Principles Governing the Grant of Bail:
The court referred to several Supreme Court judgments outlining the principles of granting bail, including the nature of accusations, severity of punishment, and reasonable apprehension of tampering with evidence. The court emphasized that bail is a discretionary power to be exercised judiciously and that the liberty of an individual should be zealously protected. The court also highlighted that the offences under sections 147/148/149 IPC are bailable, and only the offence under section 436 IPC is non-bailable, with insufficient material to support the latter charge.

Conclusion:
The court admitted the applicant to regular bail on several conditions, including furnishing a personal bond, not leaving the NCR without permission, marking presence before the Investigating Officer, and not tampering with evidence. The court underscored that judicial custody should not be used to send messages to society and that the applicant's liberty should not be deprived without substantial basis. The application was disposed of with instructions to send a copy of the order to the concerned Jail Superintendent.