Full Judgment Text
2022:DHC:371
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 01 FEBRUARY, 2022
IN THE MATTER OF:
+ BAIL APPLN. 2386/2021
RAVI KUMAR @ AMIT ..... Petitioner
Through Mr. Sanjiv Dagar, Mr. Yogesh
Verma, Advocates
versus
THE STATE (NCT) OF DELHI ..... Respondent
Through Mr. Amit Prasad, SPP
for the State with Mr. Ayodhya
Prasad, Advocate and SI Santosh
Gupta, Crime Branch
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. The petitioner seeks bail in FIR No. 70/2020 dated 27.02.2020
registered at PS Bhajanpura for offences under Sections 147, 148, 149, 302,
307, 396, 436, 455, 201, 188, 34 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 on
25.02.2020, around 11:00 AM., the complainant had gone to purchase milk
from a nearby shop when he received a call from his son Asif informing him
that a huge crowd of around 100 people had gathered near their house in
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support of NRC and CAA. The crowd was chanting slogans of “ Jai Shree
Ram ”. The crowd, thereafter, entered their house after breaking open the
locks, and set it on fire. It is stated that the complainant’s family members
and employees rushed to the top floor of the house. The complainant’s
family members and workers were safely rescued from the roof of his
residence, which was made possible by the rescue operation launched by the
police in support with the locals of the vicinity.
4. It is stated that the complainant’s mother, Smt. Akbari, who was 85
years old could not reach the rooftop due to her age. After extinguishing the
fire, her body was found lying on a folding bed and was recovered from the
second floor. She was taken to Guru Teg Bahadur Hospital, where she was
declared brought dead vide MLC No. D-45. A Post Mortem was conducted
at GTB Hospital itself and vide PM Report No. 345/2020 dated 28.02.2020,
the cause of death was opined as Asphyxia as a result of an ante-mortem
inhalation of smoke. It is further stated that the crowd looted Rs. 8,00,000 in
cash and a box containing gold and silver jewellery and other valuable
articles from their residence
5. It is stated that the investigation of the said case was transferred from
North East to Special Investigation Team-II, Crime Branch, Delhi and
subsequently to Special Investigation Unit-I, Crime Branch, Delhi vide order
No. 8266-74/AC-III/C&T/PHQ dated 27.02.2020 and No.
216/S)/DCP/Crime (SIU & ISC) dated 04.03.2020. The investigation was
undertaken by Insp. Pankaj Arora.
6. It is stated that the petitioner was arrested on 30.03.2020 and has been
in custody since then. The chargesheet was filed on 07.06.2020 and on
06.04.2021 the charges were framed by the Trial Court.
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7. The petitioner had filed Bail Application No. 398/2020 before the
Court of Sessions Judge which was dismissed vide order dated 06.08.2020.
Thereafter, another bail application vide IA No. 05/2021 in SC No. 17/2021
was filed before the Court of Sessions Judge which was subsequently
dismissed vide order dated 24.06.2021.
8. Mr. Sanjiv Dagar, the learned counsel for the petitioner, contended
that the accused has been falsely implicated in the present matter and that
there exists no evidence which can prove the connection of the Petitioner to
the incident beyond reasonable doubt. He submitted that the FIR was
registered on 27.02.2020, that is, two days after the incident occurred and
the name of the accused is nowhere mentioned therein. He further submitted
that the accused was not even called for investigation and was directly
arrested. Further, the grounds of arrest were not explained to the accused
during the time of arrest.
9. The learned counsel for the petitioner submitted that the time of the
alleged incident is stated to be about 11:00AM on 25.02.2020, whereas, the
PCR calls were made at 1:53PM and 3:29PM. Therefore, there has been a
huge delay in reporting the incident to the police which in turn places the
instant case under suspicion.
10. The learned counsel for the petitioner submitted that complainant was
not present during the incident and was informed of the same on phone by
his son. He submitted that the complainant did not mention the name of the
petitioner herein vide his statement dated 08.03.2020.The statement dated
08.03.2020, of the complainant’s wife, that is, Gulista Begum also did not
mention the name of the petitioner anywhere. He further submitted that the
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complainant and his son gave multiple statements on different dates,
however, it is only on 28.03.2020, vide a supplementary statement, that the
name of the petitioner herein was mentioned.
11. The learned counsel for the petitioner submitted that the statements of
the daughters of the complainant, that is, Isha Salmani and Ayesha Salmani,
dated 18.05.2020 should not be given any credence since they were recorded
around three months after the date of the incident and were not reliable.
12. The learned counsel for the petitioner submitted that the video clips
bearing numbers 3, 3A and 4 as produced on record do not pertain to the
SOC and are of a different location, that is, 200 metres away from the
SOC/complainant’s house. He further submitted that as per the chargesheet,
the video clippings were subjected to Facial Recognition Software (FRS),
the result of which indicates that the face of the petitioner herein did not
match with the face of the person shown in the video. Therefore, the present
case is that of a mistaken identity.
13. Mr. Dagar contended that the accused was merely a curious onlooker
and was not a part of the mob. He placed reliance on Bhagwan Singh v.
State of Madhya Pradesh, AIR 2002 SC 1621, where the court held that a
mere presence in an assembly of persons does not make a person a member
of an unlawful assembly. He submitted that neither has accused been seen
coming out of the said house in any of the video clippings nor has anything
been recovered from the possession of the accused and, therefore, the
offence of dacoity and rioting are not made out against him.
14. The learned counsel for the petitioner submitted that the conduct of
the complainant’s family was improper and provocative. He submitted that
the statement dated 10.03.2020 of Asif Salmani categorically stated that the
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family of the complainant pelted stones towards the crowd from their roof
top.
15. The learned counsel for the petitioner submitted that the accused has
been in custody since 30.03.2020. The investigation qua accused has been
complete, the chargesheet has been filed and there have not been any new
developments or further arrests since then. He further submitted that the
supplementary chargesheet has not been supplied and the FSL report has not
been placed on record yet, even though two years have passed. He further
submitted that the trial is not likely to be concluded any time soon.
Therefore, continued incarceration will violate the petitioner’s right to life
and personal liberty under Article 21 of the Constitution of India.
16. The learned counsel for the petitioner submitted that the petitioner has
no permanent employment and that the sister of the petitioner is specially
challenged and needs extra care and attention during the period of pandemic.
He placed reliance on P. Chidambaram v. Directorate of Enforcement, 2019
SCC Online SC 1549, to highlight the triple test for grant of bail. He
submitted the accused is a permanent resident of the locality in question and
there is no possibility of his absconding in the matter. The accused has deep
roots in the society and there are no apprehensions against him for
attempting to delay the trial/tamper with evidence. He further submitted that
the petitioner has undertaken to abide by the conditions that this Hon’ble
Court deems fit.
17. Per Contra, the learned SPP submitted that during investigation, the
statements of the complainant and his son Mohd. Asif Salmani were
recorded under Section 161 of the CrPC and both have categorically
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mentioned the name of the petitioner as an active member of the riotous mob
which had set the house of the complainant on fire.
18. The learned SPP submitted that several video clippings of the incident
were found that have been taken on record. The mobile phones in which
they were recorded have been seized and referred to forensic laboratory for
retrieving of video clips and expert’s analysis. He submitted that out of
these, in a video clip of 36 seconds as provided by the complainant over
Whatsapp and in a video clip of six minutes as shot by Mohd. Parvez on the
date of the incident, the petitioner along with other rioters are seen as active
members of the mob. The video captures the petitioner muffling his face
with a white cloth.
19. The learned SPP submitted that the CAF and CDR of the mobile
number of the petitioner reveals that it was activated on 05.03.2018 and
since then the same has been in use. Further, on the date and time of
incident, the mobile phone of accused was active in the area of scene of
crime. He also submitted that the CDRs of the witnesses were also obtained
from the concerned service providers and it was revealed that their
respective mobile numbers were present/active on the date and time of
incident.
20. The learned SPP submitted that after the arrest of the
petitioner/accused, at his instance, one dark blue coloured pyjama having
two printed white stripes was recovered from a bed installed in the ground
floor of his residence. He submitted that the petitioner stated that on the date
and time of the incident, he was wearing this pyjama. He also submitted that
the petitioner disclosed that the T-Shirt he was wearing during the incident
was subsequently torn off during the Holi festival celebrations.
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21. The learned SPP submitted that the presence and involvement of
petitioner here was also confirmed by co-accused Prakash Chand, during
interrogation, who was arrested in the present case on 30.03.2020.
22. The learned SPP further submitted that subsequent to the main
chargesheet, a supplementary chargesheet was filed before the Hon’ble
Court on 05.08.2020 under Section 173(8) Code of Criminal Procedure,
1973, on 05.08.2020 along with the expert’s opinion so received from the
Forensic Science Laboratory.
23. The learned SPP submitted that the complainant is a well-to-do
businessman and has been specifically targeted by the mob. He submitted
that the complainant and his family have been receiving threats from and at
the instance of the family members and the associates of the accused
persons, who live in their street itself. Due to this, the complainant and his
family are in an extremely precarious situation. Therefore, in such
circumstances, especially when all the statements of public witnesses have
not yet been recorded and when the investigation has not been conducted in
a proper manner, grant of bail would be prejudicial to the trial.
24. Mr. Pracha, the learned counsel for the complainant contended that
the above incident was a pre-mediated crime. He submitted that the house of
the complainant was situated inside the gali and not at the outskirts. Further,
through video clippings, he highlighted the fact that the area is so compact
that that there is virtually no room for any escape. He further submitted that
the ground floor was set fire and, therefore, the residents were unable to
come out of the house. This forced the residents to rush to the top floor in
order to save themselves. The mob of which the petitioner was a part, had
the knowledge that in all probability, the fire would result in the death of
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residents. He submitted that this attracts the offence of Section 302, IPC and
considering the gravity of the offence, the accused should not be released on
bail.
25. Mr. Pracha, the learned counsel for the complainant further contended
that ocular evidence is considered to be the best evidence unless there are
grave reasons to question its credibility. Where there is substantial evidence
present, the absence of an FSL report is considered as irrelevant. For this
purpose, he placed reliance on the judgement of Pruthiviraj Jayantibhai
Vanol v. Dinesh DayabhaiVala, 2021 SCC OnLine SC 493 .
26. Mr. Pracha, learned counsel for the complainant submitted that the
investigation has been conducted in a shoddy manner which is against the
principles of fair trial under Article 21 of the Constitution of India. He
further submitted that neutrality of the police and the investigating agency is
an important factor to conduct the investigation in a proper manner. For this
purpose, he placed reliance on Pooja Pal v. Union of India and Others,
(2016) 2 SCC 135 .
27. The court has heard both the parties and perused the material on
record.
28. A perusal of the chargesheet indicates that the petitioner is a resident
of Bhajanpura. The chargesheet states that an analysis of the Petitioner's
mobile number has revealed that he was present at the Scene of Crime
during the time of the incident. The chargesheet mentions that the petitioner
has been identified by the complainant and his son Mohd. Asif.
29. The chargesheet shows that during the course of investigation certain
video clips were retrieved that were shot from the mobile phones of the
individuals present at the scene of crime or downloaded online. However,
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the video clips merely show the petitioner herein muffling his face with a
white cloth. It is not evident as to whether the petitioner herein was actively
participating in the mob that set the house of the complainant on fire or not.
30. In the instant case, the issue which arises for consideration is whether
when an offence of murder is committed by an unlawful assembly, then
should each person in the unlawful assembly be denied the benefit of bail,
regardless of their role in the unlawful assembly or the object of the
unlawful assembly. In order to understand the same, it is useful to refer to
Section 149 IPC which reads as follows:
“ 149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object. -
If an offence is committed by any member of an
unlawful assembly in prosecution of the common object
of that assembly, or such as the members of that
assembly knew to be likely to be committed in
prosecution of that object, every person who, at the
time of the committing of that offence, is a member of
the same assembly, is guilty of that offence.”
(emphasis supplied)
31. The Supreme Court has consistently held that in order to convict an
accused with the aid of Section 149, a clear finding needs to be given by the
Court regarding the nature of unlawful common object. Furthermore, if any
such finding is absent or if there is no overt act on behalf of the accused, the
mere fact that the accused was armed would not be sufficient to prove
common object.
32. In Kuldip Yadav and Ors. v. State of Bihar, (2011) 5 SCC 324 , the
Supreme Court has categorically stated:
“ 39 . It is not the intention of the legislature in enacting
Section 149 to render every member of unlawful
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assembly liable to punishment for every offence
committed by one or more of its members. In order to
attract Section 149, it must be shown that the
incriminating act was done to accomplish the common
object of unlawful assembly and it must be within the
knowledge of other members as one likely to be
committed in prosecution of the common object. If the
members of the assembly knew or were of the
likelihood of a particular offence being committed in
prosecution of the common object, they would be liable
for the same under Section 149.”
33. In Sherey and Ors. v. State of U.P., (1991) Supp (2) SCC 437 , the
Supreme Court considered as to whether Section 149 of the IPC could be
applied to hold an accused constructively liable on the basis of omnibus
allegations made by witnesses and on the basis of their mere presence at the
spot/scene of crime.
“ 4 . We have carefully gone through the evidence. We
have no doubt that all the eye-witnesses were present.
Nothing significant has been elicited in their cross
examination. However, the eye-witnesses simply named
these appellants and identified them. So, the question is
whether it is safe to convict all the appellants. In a case
of this nature, the evidence of the witnesses has to be
subjected to a close scrutiny in the light of their former
statements. The earliest report namely the FIR has to
be examined carefully. No doubt in their present
deposition they have described the arms carried by the
respective accused but we have to see the version given
in the earliest report. In that report PW 1 after
mentioning about the earlier proceedings has given a
fairly detailed account of the present occurrence. He
has mentioned the names of the witnesses and also the
names of the three deceased persons. Then he
proceeded to give a long list of names of the accused
and it is generally stated that all of them were
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exhorting and surrounded the PWs and the other
Hindus and attacked them. But to some extent specific
overt acts are attributed to appellants 1, 4, 5, 7, 8, 10,
17, 22 and 25. It is mentioned therein that these nine
accused were armed with deadly weapons and were
seen assaulting the deceased Ram Narain and others.
Now in the present deposition he improved his version
and stated that in addition to these nine accused, five
more persons also attacked the deceased and others. In
view of this variation we think that it is safe to convict
only such of the appellants who are consistently
mentioned as having participated in the attack from the
stage of earliest report. With regards the rest PW 1
mentioned in an omnibus way that they were armed
with lathis. He did not attribute any overt act to any
one of them. Further, the medical evidence rules out
any lathis having been used. The doctor found only
incised injuries on the dead bodies and on the injured
PWs. Therefore, it is difficult to accept the prosecution
case that the other appellants were members of the
unlawful assembly with the object of committing the
offences with which they are charged . We feel it highly
unsafe to apply Section 149 IPC and make everyone
of them constructively liable. But so far as the above
nine accused are concerned the prosecution version is
consistent namely that they were armed with lethal
weapons like swords and axes and attacked the
deceased and others. This strong circumstance
against them establishes their presence as well as
their membership of the unlawful assembly. The
learned counsel appearing for the State vehemently
contended that the fact that the Muslims as a body
came to the scene of occurrence would show that they
were members of an unlawful assembly with the
common object of committing various offences
including that of murder. Therefore, all of them
should be made constructively liable. But when there
is a general allegation against a large number of
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persons the Court naturally hesitates to convict all of
them on such vague evidence. Therefore, we have to
find some reasonable circumstance which lends
assurance…” (emphasis supplied)
34. When there is a crowd involved, at the juncture of grant or denial of
bail, the Court must hesitate before arriving at the conclusion that every
member of the unlawful assembly inhabits a common intention to
accomplish the unlawful common object. It cannot be assumed that every
member of the unlawful assembly could be found guilty of the offence of
Section 302 of the IPC and, therefore, every decision on an application of
bail must be based on a careful consideration of the facts and circumstances
in the matter therein.
35. In relation to the bar imposed by Section 437(1) CrPC on granting of
bail, the Supreme Court in Gurcharan Singh v. State (Delhi
Administration), (1978) 1 SCC 118 , holds that it is the Court which has the
last say on whether there exists any reasonable grounds for believing that
the accused is guilty of committing the said offence. Furthermore, there is
no blanket bar as such which is imposed on the Court on granting of bail in
such cases and that the Court can exercise discretion in releasing the
accused, as long as reasons are recorded which clearly disclose how the
discretion has been exercised. The relevant extract is as follows:
“ 24 . Section 439(1), Cr.P.C. of the new Code, on the
other hand, confers special powers on the High Court
or the Court of Session in respect of bail. Unlike under
Section 437(1) there is no ban imposed under Section
439(1), Cr.P.C. against granting of bail by the High
Court or the Court of Session to persons accused of an
offence punishable with death or imprisonment of life.
It is, however, legitimate to suppose that the Court or
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the Court of Session will be approached by an accused
only after he has failed before the Magistrate and after
the investigation has progressed throwing light on the
evidence and circumstances implicating the accused.
Even so, the High Court or the Court of Session will
have to exercise its judicial discretion in considering
the question of granting of bail under Section 439(1),
Cr.P.C. of the new Code. The overriding
considerations in granting of bail to which we adverted
to earlier and which are common both in the case of
Section 43791) and Section 439(1), Cr.P.C. of the new
Code are the nature and gravity of the circumstances
in which the offence is committed; the position and the
status of the accused with reference to the victim and
the witnesses; the likelihood of the accused fleeing
from justice; of repeating the offence; of jeopardising
his own life being faced with a grim prospect of
possible conviction in the case; of tampering with
witnesses; the history of the case as well as its
investigation and other relevant grounds which, in
view of so many valuable factors, cannot be
exhaustively set out.”
36. It must also be kept in mind that gravity of the offence cannot be the
sole basis for grant of bail. In the case of the Prabhakar Tiwari v. State of
U.P., (2020) SCCOnline SC 75 , the Supreme Court has held that despite
the alleged offence being grave and serious, and there being several
criminal cases pending against the accused, these factors by themselves
cannot be the basis for the refusal of prayer for bail.
37. The Petitioner was arrested on 30.03.2020 and has been in judicial
custody since then. It has been 20 months since the arrest of the Petitioner.
Bail jurisprudence attempts to bridge the gap between the personal liberty
of an accused and ensuring that social security remains intact. It is the
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intricate balance between the securing the personal liberty of an individual
and ensuring that this liberty does not lead to an eventual disturbance of
public order. It is egregious and against the principles enshrined in our
Constitution to allow an accused to remain languishing behind bars during
the pendency of the trial. Therefore, the Court, while deciding an
application for grant of bail, must traverse this intricate path very carefully
and thus take multiple factors into consideration before arriving at a
reasoned order whereby it grants or rejects bail.
38. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ,
the Supreme Court laid down the parameters for granting or refusing the
grant of bail which are as under:
“i. whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
ii. nature and gravity of the accusation;
iii. severity of the punishment in the event of
conviction;
iv. Danger of the accused absconding or fleeting, if
released on bail;
v. character, behavior, means, position and standing of
the accused;
vi. Likelihood of the offence being repeated; vii.
Reasonable apprehension of the witnesses being
influenced; and viii. Danger, of course, of justice being
thwarted by grant of bail.”
39. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 , the Supreme Court
had observed as under:
“ 12 . The determination of whether a case is fit for the
grant of bail involves the balancing of numerous
factors, among which the nature of the offence, the
severity of the punishment and a prima facie view of
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the involvement of the accused are important. No
straitjacket formula exists for courts to assess an
application for the grant or rejection of bail. At the
stage of assessing whether a case is fit for grant of
bail, the court is not required to enter into a detailed
analysis of the evidence on record to establish beyond
reasonable doubt the commission of the crime by the
accused. That is a matter of trial. However, the Court
is required to examine whether there is a prima facie
or reasonable ground to believe that the accused had
committed the offence and on a balance of the
considerations involved, the continued custody of the
accused subserves the purpose of the criminal justice
system. Where bail has been granted by a lower court,
an appellate court must be slow and ought to be guided
by the principles set out for the exercise of the power to
set aside bail.” 42. It is the Constitutional duty of the
Court to ensure that there is no arbitrary deprivation
of personal liberty in the face of excess of State power.
Bail is the rule and jail is the exception, and Courts
must exercise their jurisdiction to uphold the tenets of
personal liberty, subject to rightful regulation of the
same by validly enacted legislation. The Supreme
Court has time and again held that Courts need to be
alive to both ends of the spectrum, i.e. the duty of the
Courts to ensure proper enforcement of criminal law,
and the duty of the Courts to ensure that the law does
not become a tool for targeted harassment."
40. It is the Constitutional duty of the Court to ensure that there is no
arbitrary deprivation of personal liberty in the face of excess of State
power. Bail is the rule and jail is the exception, and Courts must exercise
their jurisdiction to uphold the tenets of personal liberty, subject to rightful
regulation of the same by validly enacted legislation. The Supreme Court
has time and again held that Courts need to be alive to both ends of the
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spectrum, i.e. the duty of the Courts to ensure proper enforcement of
criminal law, and the duty of the Courts to ensure that the law does not
become a tool for targeted harassment.
41. As has been stated above, the petitioner herein has been in custody
for 20 months. The chargesheet has been filed and the investigation qua the
petitioner herein has been completed and no incriminating evidence has
been recovered from the petitioner. Further, the Trial court has taken
cognizance of the matter and the charges have also been framed. Whether
the identification of the petitioner as per the witness statements under
Section 161 CrPC and the presence of the petitioner in the video footage is
enough to determine the petitioner as an active member of the unlawful
assembly with the common intention to commit the offence of Section 302,
in furtherance of the common object, is matter of trial and cannot be delved
into, at this juncture. As noticed above, the video footage only shows the
petitioner muffling his face. He is not seen actively participating with the
mob. The petitioner only seems to be a curious onlooker. The above
material against the petitioner does not justify the continued incarceration
of the Petitioner. Considering the fact that the trial is likely to continue for a
long period of time, this Court is of the opinion that it would not be prudent
to keep the Petitioner behind bars for an undefined period of time at this
stage. The Petitioner has roots in society, and, therefore, there is no danger
of him absconding and fleeing
42. In view of the facts and circumstances of the cases, without
commenting on the merits of the matter, this Court is of the opinion that the
Petitioner cannot be made to languish behind bars for a longer period of
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time, and that the veracity of the allegations levelled against him can be
tested during trial.
43. Accordingly, this Court is inclined to grant bail to the Petitioner in
FIR No. 70/2020 dated 27.02.2020 registered at PS Bhajanpur for offences
under Sections Bhajanpura for offences under Sections 147, 148, 149, 302,
307, 396, 436, 455, 201, 188, 34 of the IPC on the following conditions :
a. The Petitioner shall furnish a personal bond in the sum of
₹35,000/- with one surety of the like amount to the satisfaction
of the Trial Court/Duty Magistrate.
b. The Petitioner shall not leave NCT of Delhi without prior
permission of this Court.
c. The Petitioner shall report to the concerned Police Station
every Tuesday and Thursday at 10:30 AM and should be
released after completing the formalities within half an hour.
d. The Petitioner is directed to give all his mobile numbers to the
Investigating Officer and keep them operational at all times.
e. The Petitioner has given his address in the memo of parties as
House No. 53,Gali No. 1, Village Gamri, Bhajanpura, Delhi
110053. The Petitioner is directed to continue to reside at the
same address. In case there is any change in the address, the
Petitioner is directed to intimate the same to the IO.
f. The Petitioner shall not, directly or indirectly, tamper with
evidence or try to influence the witnesses.
g. Violation of any of these conditions will result in the
cancellation of the bail given to the petitioner.
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44. It is made clear that the observations made in this Order are only for
the purpose of grant of bail and cannot be taken into consideration during
the trial.
45. Accordingly, the bail application is disposed of along with the
pending application(s), if any.
SUBRAMONIUM PRASAD, J.
FEBRUARY 01, 2022
Rahul
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