The Delhi High Court on Friday rejected bail plea filed by CAA protestor Shadab Alam, allegedly involved in the Delhi Riots of 22nd to 24th February and was arrested on a PCR call on 24thFebruary, 2020.
Justice Mukta Gupta heard the bail application filed by Shadab Alam seeking bail on the grounds that he has not been arrested in any other FIR and is not involved in any other case. An FIR was filed against Shadab at Dayal Pur Police station alleging his involvement in the Riots under Section 147/148/149/427 IPC and Section 3 of Damage to Public Property Act, 1984 (PDPP Act).
The counsel appearing for Shadab informed the Court that there has been no recovery from the personal search of Shadab and thus there is no physical evidence of the involvement of the petitioner in the alleged offence and there is no evidence till date that the petitioner participated in the offences. The counsel sought directions from the court as per the decision Supreme Court in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273.
The Court said, “In any case, by the subsequent meeting, the Committee has relaxed and directed release of the prisoners who are alleged to be involved in offences punishable upto ten years imprisonment. Though the petitioner is not seeking any benefit from the decision of the High Power Committee, however, seeks exercise of judicial discretion in view of the evidence collected by the investigating agency till date. The petitioner also does not claim benefit due to the prevailing lockdown situation as the bail application of the petitioner was filed even prior to the lockdown being directed however, since there is lockdown, the petitioner cannot go anywhere or tamper with any evidence.”
Counsel for the petitioner placed reliance on the Munir Babu vs. State of Kerala Judgement argued that “…Section 3 of the PDPP Act has been wrongly invoked for the reason even as per the FIR and the recoveries made, the Scooty, motorbikes, TSR and the Maruti Alto car allegedly burnt were not “public property” in terms of Section 2(b) of the PDPP Act as the same do not belong to the Government.” He further contended that Section 436 IPC is also not applicable as no dwelling house has been burnt. In any case, there is no witness or no CCTV footage showing that the petitioner was the one who set on fire the vehicles or the shops.
Justice Gupta noted in the order, “This FIR was registered after a PCR call was received and the Head Constable on reaching the spot found the vehicles, as noted above, have been put on fire. As per the prosecution statement of two eye witnesses were recorded one of whom signed the arrest memo. Statement of only one witness who had also signed the arrest memo has been produced before this Court. The statement of eye witness was recorded only on 28th February, 2020 which is an omnibus statement and does not identify any accused.”
There is undoubtedly a mystery surrounding the arrest of the petitioner and co-accused which is further fortified by the nature of injuries received by the petitioner as would be investigated in the course of events, said Justice Gupta.
“It is also strange that even as per the prosecution, the petitioner and co-accused were arrested on the 28th February, 2020 and produced before the Magistrate on the same day and no police custody remand was sought, nor was an application filed for conducting TIP by the other witness who was not present at the time of arrest. Statement of this witness recorded under Section 161 Cr.P.C. has also not been produced,” Court noted.
The High Court further noted that, “The petitioner/Alam has also pressed into service the CCTV footage of 24th February, 2020 when the petitioner claims to have been arrested alongwith one Naved by the police and kept in illegal confinement and only when the application was filed by the co-accused persons alleging illegal detention since 24th February, 2020 the arrest of the petitioner have been shown in the present FIR.”
The Court while dismissing the bail application stated that “Since the investigation is going on and the persons who were present at the spot are required to be ascertained by scientific evidence and even if found that the petitioner is part of the unlawful assembly even though he may not have individually torched any vehicle or the shops he would be liable for the offences, at this stage this Court finds no ground to grant bail to the petitioner.”
-India Legal Bureau