Full Judgment Text
$~116 to 120, 122, 123 & 132
* IN THE HIGH COURT OF DELHI AT NEW DELHI
116.
+ BAIL APPLN. 1107/2022
SUNNY ..... Applicant
Through: Mr. Maninder Singh, Sr. Adv. with
Mr. Neeraj, Mr. Ripudaman
Bhardwaj, Mr. Piyush Beriwal, Mr.
Sunender Mogha, Mr. Himanshu
Sethi and Mr. Pranav Sehgal, Advs.
Versus
STATE OF N.C.T. OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
117.
+ BAIL APPLN. 1108/2022
RAJU KUMAR SINGH ..... Applicant
Through: Ms. Sonia Mathur and Mr. Maninder
Singh, Sr. Advs. with Mr. Anurag
Ahluwalia, and Mr. K.K. Tyagi, Mr.
Amit Tiwari, Mr. Sushil Pandey, Ms.
Prerna Dhall, Mr. Simranjeet Singh
Saluja and Mr. Abhigyan Siddharth,
Advs.
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
BAIL APPLN. 1107/2022 & connected matters Page 1 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
Kumar and Inspector Satish Kumar,
E.O.W.
118.
+ BAIL APPLN. 1111/2022
NEERAJ DIXIT ..... Applicant
Through: Mr. Amit Sharma, Sr. Adv. with Mr.
K.K. Tyagi, Mr. Satya Ranjan Swain,
Mr. Sanket Gupta, Mr. Nishant
Kumar Tyagi and Mr. Atulya Anand,
Advs.
Versus
STATE OF N.C.T. OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
119.
+ BAIL APPLN. 1113/2022
PRADEEP KUMAR TIWARI ..... Applicant
Through: Mr. Kirti Uppal, Sr. Adv. with Mr.
Pradeep Sharma, Mr. D.D. Sharma,
Mr. Raj Kumar, Mr. Abhay Kumar
and Mr. Dharmendra Tyagi, Advs.
Versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
120.
BAIL APPLN. 1107/2022 & connected matters Page 2 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
+ BAIL APPLN. 1114/2022
NAVEEN KUMAR ..... Applicant
Through: Mr. Ajay Burman, Sr. Adv. with Mr.
Ankit Verma, Mr. Avnish Kumar, Mr.
P.S. Singh, Mr. Ajeet Yadav, Mr.
Neeraj, Mr. Amit Tiwari and Mr.
Atulya Anand, Advs.
Versus
STATE OF N.C.T. OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
122.
+ BAIL APPLN. 1148/2022
BABLU KUMAR SINGH ..... Applicant
Through: Mr. Sunil Dalal, Sr. Adv. with Mr.
Vijay Joshi, Mr. Subhash Tanwar,
Mr. Rajesh Mishra and Mr. Deepak
Tanwar, Advs.
Versus
STATE OF N.CT OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
123.
+ BAIL APPLN. 1149/2022
CHANDRAKANT BHARDWAJ ..... Applicant
Through: Mr. Pavan Narang, Mr. Anil Soni,
BAIL APPLN. 1107/2022 & connected matters Page 3 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
Mr. Vedansh Anand, Ms. Manisha
Saroha and Ms. Pratibha, Advs.
Versus
STATE OF N.C.T. OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
132.
+ BAIL APPLN. 1125/2022
JITENDER SINGH BISHT ..... Applicant
Through: Mr. Ajay Digpaul, Mr. Anurag
Ahluwalia, Mr. Rudra Paliwal, Mr.
Karambir Singh and Mr. Sahaj Garg,
Advs.
Versus
STATE OF N.C.T. OF DELHI ..... Respondent
Through: Mr. Sanjay Lao, SC with Ms. Nandita
Rao, ASC, Mr. Amit Ahlawat, APP,
Mr. Karan Jeot Rai Sharma and Mr.
Gagan Kumar, Advs. for State with
Inspectors Ajay Kumar Sharma,
Rupesh Kumar Khatri and SI Parveen
Kumar and Inspector Satish Kumar,
E.O.W.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
O R D E R
% 12.04.2022
CRL.M.A. 6523/2022 in BAIL APPLN. 1107/2022, CRL.M.A. 6533/2022
in BAIL APPLN. 1108/2022, CRL.M.A. 6537/2022 in BAIL APPLN.
1111/2022, CRL.M.A. 6542/2022 in BAIL APPLN. 1113/2022,
CRL.M.As. 6543/2022 in BAIL APPLN. 1114/2022, CRL.M.A.
6772/2022 in BAIL APPLN. 1148/2022, CRL.M.A. 6773/2022 in BAIL
BAIL APPLN. 1107/2022 & connected matters Page 4 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
APPLN. 1149/2022 & CRL.M.A. 6625/2022 in BAIL APPLN. 1125/2022
(all for exemption)
1. Allowed, subject to just exceptions.
2. The applications stand disposed of.
BAIL APPLN. 1107/2022 & CRL.M.A. 6524/2022 (for interim relief),
BAIL APPLN. 1108/2022 & CRL.M.A. 6534/2022 (for interim relief),
BAIL APPLN. 1111/2022 & CRL.M.A. 6538/2022 (for interim relief),
BAIL APPLN. 1114/2022 & CRL.M.A. 6544/2022 (for interim relief),
BAIL APPLN. 1113/2022, BAIL APPLN. 1148/2022, BAIL APPLN.
1149/2022 & BAIL APPLN. 1125/2022
3. Since the eight applicants are accused in the same FIR bearing
th
No.200/2022 dated 30 March, 2022 registered under Sections
186/188/353/332/143/147/149 IPC and Section 3 of the Prevention of
Damage to Public Property Act, 1984 (for short „PDPP Act‟), Police Station
Civil Lines, Delhi, all these applications shall be disposed of vide this
common order.
4. The FIR was registered when a protest was held near the residence of
the Chief Minister of Delhi (CM Residence for short) despite the Deputy
Commissioner of Police, Delhi declining permission to the applicants to
hold such a protest. It is also the case in the FIR that the applicants had
jumped police barricades installed at the CM Residence and the same were
broken and an attempt was made to force entry into the residence. The
Police Officials, it is claimed, were obstructed and criminal force used on
them and a few of them had sustained injuries.
5. It may be further noted that the Duty Metropolitan Magistrate had
st
dismissed the bail applications of the accused persons on 31 March, 2022
and had remanded them to judicial custody. Similarly, the bail applications
BAIL APPLN. 1107/2022 & connected matters Page 5 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
filed before the learned Additional Sessions Judge were also dismissed vide
th
order dated 4 April, 2022.
6. Mr. Kirti Uppal, learned senior counsel for the applicant in Bail
Application No.1113/2022 submitted that following the judgment of the
Supreme Court in Munawar Vs. State of M.P. 2021 (3) SCC 712, since the
police had failed to issue a notice under Section 41A Cr.P.C., as mandated
by the Supreme Court in Arnesh Kumar Vs. State of Bihar 2014 (8) SCC
273, the applicants ought to have been straightway admitted to interim bail.
However their bail applications have been improperly rejected by the
learned Duty Metropolitan Magistrate and the learned Additional Sessions
Judge.
7. It is further submitted that the learned Additional Sessions Judge had
th
in fact noticed in the order dated 29 March, 2022 (placed on record as
Annexure A-3 in Bail Application No.1107/2022) had observed that in fact
the provisions of Section 41A Cr.P.C. had not been complied with by the
Police, but found that an advisory to the Deputy Commissioner of Police to
take departmental action was sufficient to meet the ends of justice. It was
further submitted that under Section 41(1)(a) Cr.P.C. the Police could arrest
a person immediately, if he was committing a cognizable offence in their
presence.
8. Referring to the FIR, the learned senior counsel submitted that the
allegations are that initially the protesters were sitting on „ dharna’ in front
of the I.P. College. They also had a tempo in their possession. Since the
crowd was increasing and nearly 200 people assembled there, the Police
placed barricades and crowds were repeatedly requested to desist from
breaking the barricading. Thereafter, some of the protesters moved towards
BAIL APPLN. 1107/2022 & connected matters Page 6 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
the CM Residence to do „ gherao’ . The police tried to stop them at the Flag
Staff Road with barricades, but the protesters broke those barricades and
moved further.
9. It is the contention of the learned senior counsel that when the two
sets of barricades were jumped over by the protesters, cognizable offences
under which the FIR has been registered could be said to have been
committed in the presence of the Police Officials and yet, no arrests were
made. Therefore, the provisions of Section 41A Cr.P.C. kicked in and in
terms of the judgment of Arnesh Kumar (supra), the Police had to issue
notice before seeking to arrest the applicants. It was submitted that the
applicants were arrested later in the night between 9.00 and 9.30 P.M. from
their houses. Thus, the statutory requirements have been given a go by. The
learned senior counsel further pointed out that several others have been
issued such notices under Section 41A Cr.P.C. and they have joined
investigations. Therefore, there was no reason why the applicants should
continue to remain in judicial custody.
10. It was further urged by the learned senior counsel that the applicants
have remained for 13 days in judicial custody and the concern of the learned
Additional Sessions Judge that the period of police remand had not expired
th
could no longer be held to be true as today is the 14 day of judicial custody
of the applicants. It was submitted that the applicants were young persons
with clean antecedents. Hence, it was prayed that they be admitted to bail.
11. Mr. Ajay Burman, learned senior counsel for the applicant in Bail
Application No.1114/2022 submitted that during the period that the
applicant has remained in judicial custody the Police have made no efforts
whatsoever to carry out any interrogation of the applicant. It is further
BAIL APPLN. 1107/2022 & connected matters Page 7 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
submitted that no weapons were in the hands of the applicant or any of the
protesters and therefore there was no recovery that was required to be
effected. Moreover, the witnesses were Police Officials and there was
CCTV footage which was in the custody of the police themselves. It was
submitted that most of the offences are bailable offences, punishable with
imprisonment ranging from 3 months to 3 years except for the offence under
PDPP Act which was punishable with a maximum term of 5 years.
Therefore, the police were bound to have issued a notice under Section 41A
Cr.P.C. before effecting the arrest of the applicant.
12. With regard to Section 149 IPC which has now been added in the FIR,
it is only an enabling provision and would not add or detract from the
alleged seriousness of the offences in respect of which the applicant is in
judicial custody. It was submitted that no further investigations were
pending and there could be no possibility of the applicant tampering with
any evidence which was in the custody of the police themselves. The
learned senior counsel also argued that no arrest had been made on the spot
under Section 41(1)(a) Cr.P.C. and the crowd had disappeared. Everyone
had gone home from where the applicants were subsequently arrested in the
night. Thus, the prosecution cannot now claim, as they have in the Status
Report, that Section 41(1)(b) Cr.P.C. was applicable and those conditions
were satisfied and the arrests rightly made.
13. The learned senior counsel submitted that a speaking order was
required under Section 41(1)(b) Cr.P.C. where the Police Officer had to
satisfy himself of the existence of certain pre-conditions and to record his
reasons in writing as to why he was making the arrest. Thus, it was
submitted that there was no justification for the prosecution to insist that the
BAIL APPLN. 1107/2022 & connected matters Page 8 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
accused be not granted bail. Reliance has also been placed on the order
th
dated 28 October, 2021 of a learned Single Bench of this Court in
Cont.Cas.(C) No.480/2020 titled Rakesh Kumar Vs. Vijayanta Arya (DCP)
& Ors. where the court held the police to be in contempt for non-compliance
of the directions issued in Arnesh Kumar (supra) and the non-issuance of
notice under Section 41A Cr.P.C.
14. Ms. Sonia Mathur, learned senior counsel for the applicant in Bail
Application No.1108/2022 also drew attention of the Court to page No.10 of
the order of the learned Additional Sessions Judge where there was
reference to pendency of investigations to determine whether other offences
have been committed including under Section 149 IPC. The learned senior
counsel submitted that now Section 149 IPC has also been added, but since
it was only an enabling provision, nothing turned on the same. She also
underlined that no weapon, no brick bat, nothing had been used or
recovered. In fact the protest was only a peaceful one and some sloganeering
took place but the protesters were merely sitting outside the residence of the
Chief Minister of Delhi. The applicant had already suffered 13 days‟
incarceration and being a young person being subjected to long periods of
detention could be counter-productive. It is further argued that the applicant
has not been named in the FIR and the identification is on the basis of the
statement of witnesses and the CCTV footage which was in the custody of
the police. Therefore, there was no possibility of tampering. Hence, she
prayed that bail be granted.
15. Mr. Amit Sharma, learned senior counsel for the applicant in Bail
Application No.1111/2022 pointed out that the applicant in this case was in
fact found fit to be granted a 5 days interim bail to enable him to attend the
BAIL APPLN. 1107/2022 & connected matters Page 9 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
th st
marriage of his sister between 16 April, 2022 to 21 April, 2022. It was
further urged that there was no supporting material in the Status Report to
substantiate the statement of the police that the applicant would be
tampering with the evidence or he was a flight risk. Therefore, none of the
conditions prescribed in Section 41(1)(b) Cr.P.C. existed in the present case
and therefore, the applicant be granted bail.
16. Mr. Pavan Narang, learned counsel for the applicant in Bail
Application No.1149/2022 also underlined the arguments that Section
41(1)(b) Cr.P.C. was not applicable to the facts of the present case. As the
offence was allegedly committed in the presence of the police, when they
did not apprehend the protesters at the spot as required under Section
41(1)(a) Cr.P.C., there was no choice left but to arrest only after notice
under Section 41A Cr.P.C. had been issued. Non-compliance, therefore,
entitled the applicant to bail.
17. Mr. Maninder Singh, learned senior counsel for the applicant in Bail
Application No.1107/2022, Mr. Sunil Dalal, learned senior counsel for the
applicant in Bail Application No.1148/2022 and Mr. Ajay Digpaul, learned
counsel for the applicant in Bail Application No.1125/2022 have adopted the
arguments made by the learned senior counsel for the applicants
hereinbefore.
18. Mr. Sanjay Lao, learned Standing Counsel (Criminal) for the
respondent/State submitted that the learned Single Judge of this court in
nd
order dated 22 August, 2017 in W.P.(C) No.7180/2017 titled Civil Lines
Resident Welfare Association (Regd.) and Anr. Vs. GNCT of Delhi and
Ors. (copy of the said order has been handed over in the court) had
specifically directed the police to ensure that adequate steps were taken for
BAIL APPLN. 1107/2022 & connected matters Page 10 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
keeping the residential roads free for traffic movement. They were also
directed to restrict the „ dharnas’ and protest in the residential area in
question and to ensure that no unnecessary inconvenience is caused to the
public at large on account of any such protest. Therefore, the Deputy
Commissioner of Police had declined permission to the protesters to hold
their „ dharna’, despite which and in disobedience of such orders, they had
organised the protest.
19. Not only they did so, but they also crossed the barricades and when
the police re-enforcement came, they ran away from the spot. On the basis
of the CCTV footage, the applicants were arrested. It was submitted that the
CCTV near the CM Residence was also broken and 4 policemen were
injured. It was submitted that the opinion on the MLC of two policemen
were disclosed to be „simple‟ but the head injury on two other policemen
were yet to be determined and if they are found to be „dangerous‟, then
further sections would be added. It was also submitted that investigations
have not concluded as the staff at the CM Residence were remaining to be
examined and their statements recorded. Therefore, it would be pre-mature
to release the applicants on bail.
20. It was further submitted that there was a fear of repetition of the
offence and therefore Section 41(1)(b) Cr.P.C. was applicable. The
foundation for this fear was a tweet of a Member of Parliament of the
Bhartiya Janta Party who apparently threatened not to spare the Chief
Minister of Delhi till he apologised for the comments made by him in the
Floor of the House. The learned Standing Counsel (Criminal) submitted that
if at all the protesters did not like the comments, they had all the freedom to
raise the issue in the Parliament or in the Assembly but had no right to come
BAIL APPLN. 1107/2022 & connected matters Page 11 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
on to the road and outside the residence of the Chief Minister to protest and
create a law and order situation by scaling the gates and walls. It was
further submitted that the youth of the applicants was inconsequential
considering the acts done by them. Hence, it was submitted that the
applications be rejected.
21. In response, Mr. Kirti Uppal, learned senior counsel on behalf of the
applicants submitted that politics ought to be kept out of the arguments,
inasmuch as the applicants were seeking remedies under law. Thus, the FIR
itself showed no criminal intent and no one was alleged to have been armed
with any weapon. There was a peaceful protest and if at all there was any
violation of the law, they would face trial, whereas, there was no ground
whatsoever to deny them bail.
22. I have heard the submissions of all the learned senior counsel and
counsel for the applicants as also the submissions of the learned Standing
Counsel (Criminal) for the respondent/State and have considered the
material on record and the case law cited.
23. It is clear that the arguments have been centralized on the non-
compliance of Section 41(1)(a) of the Cr.P.C. A learned Single Judge of this
Court has underlined the need for strict adherence to the directions in
Arnesh Kumar (supra) and the issuance of notice under Section 41A Cr.P.C.
and has held that not only should the notice be issued, but the notice must
also be in the format prescribed and be a mere intimation. In Arnesh Kumar
(supra), the following directions had been issued:
“11. Our endeavour in this judgment is to ensure that police
officers do not arrest the accused unnecessarily and Magistrate
do not authorise detention casually and mechanically. In order
to ensure what we have observed above, we give the following
BAIL APPLN. 1107/2022 & connected matters Page 12 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
directions:
11.1. All the State Governments to instruct its police officers
not to automatically arrest when a case under Section 498-A
IPC is registered but to satisfy themselves about the necessity
for arrest under the parameters laid down above flowing from
Section 41 CrPC;
11.2. All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly filled
and furnish the reasons and materials which necessitated the
arrest, while forwarding/producing the accused before the
Magistrate for further detention;
11.4. The Magistrate while authorising detention of the accused
shall peruse the report furnished by the police officer in terms
aforesaid and only after recording its satisfaction, the
Magistrate will authorise detention;
11.5. The decision not to arrest an accused, be forwarded to the
Magistrate within two weeks from the date of the institution of
the case with a copy to the Magistrate which may be extended
by the Superintendent of Police of the district for the reasons to
be recorded in writing;
11.6. Notice of appearance in terms of Section 41-A CrPC be
served on the accused within two weeks from the date of
institution of the case, which may be extended by the
Superintendent of Police of the district for the reasons to be
recorded in writing;
11.7. Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned liable for
departmental action, they shall also be liable to be punished for
contempt of court to be instituted before the High Court having
territorial jurisdiction;
11.8. Authorising detention without recording reasons as
aforesaid by the Judicial Magistrate concerned shall be liable
for departmental action by the appropriate High Court.”
BAIL APPLN. 1107/2022 & connected matters Page 13 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
24. Thus, the view of the courts have been that non-compliance of Arnesh
Kumar (supra) and non-issuance of notice under Section 41A Cr.P.C. would
amount to contempt being committed by the concerned Police Officer and
would also justify the release on bail of an accused as held in Munawar
(supra). It has been the endeavour of the State to convince this Court that the
arrest has been under Section 41(1)(b) Cr.P.C. However, it is clear that there
has been no adherence to the requirements of this Section, at the time of the
arrest of the applicants.
25. A reading of Section 41(1)(b) Cr.P.C. would show that the police can
act against a person and effect his arrest when a reasonable complaint has
been made or credible information has been received or reasonable
suspicion exists that he has committed a cognizable offence punishable with
imprisonment for less than 7 years or may extend to 7 years with or without
fine. But additionally, the Police Officer has to be “satisfied” of the
“existence” of other conditions, namely, that he has reason to believe on the
basis of such complaint/information or suspicion that the person had
committed the said offence. Secondly, he must be “satisfied” that such arrest
was “necessary” to prevent such a person from committing any further
offence or for proper investigation of the offence or to prevent such person
from causing the evidence of the offence to disappear or tamper with such
evidence in any manner. The further conditions justifying arrest would be to
prevent the person from making any inducement or threat to any person
acquainted with the facts or that his presence in the court whenever required
cannot be ensured. Most importantly, the Police Officer is to record, while
making such arrest, his reasons in writing. There is no such written
document where the Investigating Officer has recorded his satisfaction on
BAIL APPLN. 1107/2022 & connected matters Page 14 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
the existence of the conditions aforementioned and as provided for under
Section 41(1)(b) Cr.P.C.
26. Irrespective, it may be considered whether the grant of bail in the
present case to the applicants would result in any of these situations. It is
indeed farfetched to claim that a repeat offence would occur because of a
tweet. Therefore, there is no material on which any Police Officer could be
satisfied that the applicants were required to be prevented from committing
any further offence.
27. As to proper investigations, the witnesses are the policemen who were
on duty and the staff of the CM Residence and the CCTV footage, which has
been preserved. There is no dispute that others have been issued notices
under Section 41A Cr.P.C., pursuant to which, they are joining
investigations. Thus, the continued detention of the applicants in judicial
custody is clearly not required for proper investigation of the offences.
28. As noticed, since the nature of the evidence is such, there is no
possibility of the applicants tampering with the evidence or inducing or
threatening any witness. Furthermore, nothing has been brought on the
record by the respondent/State which suggests that the applicants would not
appear before the court when required.
29. At this juncture, the arguments regarding the applicability of Sections
41(1)(a) Cr.P.C. and 41(1)(b) Cr.P.C. may also be dealt with. There is force
in the contention of learned senior counsel for the applicants that when as
per the FIR, the barricades were jumped over by the applicants in the
presence of the police, they could have been arrested then and there under
Section 41(1)(a) Cr.P.C.. However, admittedly, all the applicants have been
arrested subsequently at night around 9.00 or 9.30 P.M from their homes.
BAIL APPLN. 1107/2022 & connected matters Page 15 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
Clearly, therefore, Section 41(1)(a) Cr.P.C. has not been applied and unless
the conditions prescribed in Section 41(1)(b) Cr.P.C. were stated to exist, the
police before arresting the applicants, had no choice but to have issued
notices under Section 41A Cr.P.C.
30. To determine whether the applicants are entitled to bail, an in-depth
and detailed analysis of the nature of the allegations is not called for. The
FIR itself records that initially the protestors gathered outside the I.P.
College and that as the crowd swelled the members of the Bhartiya Janta
Yuva Morcha started moving forward but significantly there is no mention
of any weapon or arms nor of any call for violence. The FIR merely states
that the applicants jumped the barricades. It is also stated that the police
sought to reason with them but they did not listen to the police and kept
moving towards the CM Residence. There is reference to jostling, during
which some policemen have received injuries. Four policemen stated to be
injured are not hospitalised. Their MLCs have also been collected, only the
opinion in respect of two policemen, is awaited.
31. With regard to the damage caused to public property, which cannot be
at any stage certainly overlooked, but the facts are to be considered to
reckon what damage has been caused. Here, the allegations are that the
protestors have vandalised some of the CCTV cameras and an arm of a
boom barrier and had also smeared paint on the main gate of the CM
Residence. There is no allegation of damage to public property through
arson and fire or other means on a scale that would clearly be a far more
serious matter than what has been alleged against the applicants. The
applicants are mostly in their twenties except for three who are older.
th
32. The applicants have been in custody for 14 days, today being the 14
BAIL APPLN. 1107/2022 & connected matters Page 16 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
day. The evidence collected so far are of such a nature that the applicants
cannot tamper with it. Others who had been identified in the photos have
been issued notices under Section 41A Cr.P.C and are also participating in
the investigations. Thus, the continued custody of the applicants in jail is not
called for only because some investigations are still going on.
33. In the totality of the facts and circumstances of the case, this Court
therefore allows the bail applications and grants bail to all the applicants on
each of them furnishing a personal bond and a surety bond each for a sum of
Rs.35,000/- to the satisfaction of the learned Ilaqa Metropolitan Magistrate
and subject to the further following conditions:
(i) The applicants shall not leave NCT of Delhi without
intimating the SHO concerned;
(ii) The applicants shall not go beyond the NCR Region,
without the permission of the concerned SHO/or the learned
Trial Court after commencement of trial;
(iii) The applicants shall not directly or indirectly contact the
complainant or any other witnesses under any circumstance
and any such attempt shall be construed as an attempt at
influencing the witnesses;
(iv) The applicants shall furnish their mobile phones/landline
numbers and residential addresses as well as that of their
sureties to the I.O./SHO concerned and both shall keep their
mobiles/landline phones operational at all times during this
period and in the event of any change of the same, will
immediately inform the same to the I.O./SHO; and,
(v) The applicants shall drop a pin location on Google Maps so
BAIL APPLN. 1107/2022 & connected matters Page 17 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13
that the location of the applicants is available to the
Investigating Officer.
34. The bail applications stand disposed of along with the pending
applications.
35. Copy of this order be forwarded to the jail for information to the
applicants as also to the learned Trial Court electronically.
36. The order be uploaded on the website forthwith.
ASHA MENON, J.
APRIL 12, 2022
„bs‟
BAIL APPLN. 1107/2022 & connected matters Page 18 of 18
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:12.04.2022
23:38:13