DELHI HIGH COURT

BAIL APPLN. 2671/2022
RAVI @ ANIL CHAUDHARY
versus
STATE OF NCT OF DELHI   (PS Laxmi Nagar)

under Sections 120B/302/149/34 IPC and Sections 25/27 of the Arms Act

charge- sheet has been filed and charges are yet to be framed. The petitioner has been in custody since 10th February, 2022 and previous two applications for bail before the Sessions Court have been dismissed.

Having carefully perused the record and assessed the contentions by the parties, it is evident that none of the witnesses who would be presented by the prosecution including the eyewitness Harsh, Aman and Md. Inam, friends of the deceased who had reached the spot or the father of the deceased who had also reached the spot, had mentioned the name of the petitioner as somebody who was at the spot. Aside from the eyewitness Harsh, the statements of Aman, Md. Inam and the father all advert to what the injured Mayur Chouhan had stated to them while either on the spot or when he was being taken to the hospital. The only limited reference which points to the petitioner is the statement of Md. Inam which is a subsequent statement recorded 6 days after his initial statement where he adds to what had been apparently told to him by the injured Mayur Chouhan. This addition was that as Md. Inam had heard Mayur Chouhan stating while he was in an injured condition and being taken to the hospital that Mayur Chouhan had heard the assailants stating that they were going to go to the petitioner’s office thereafter. Prima facie this would indicate that the petitioner was definitely not present at the spot or in vicinity and that the assailants (or some of them) had an intention of going to the petitioner’s office thereafter. Whether this plan of going to the petitioner’s office thereafter fructified or was part of a pre hatched conspiracy or plan would be finally for the prosecution to prove during trial. However, at this stage there was nothing on record to suggest that there did exist this conspiracy and there was a plan in which the petitioner had conspired to kill the deceased. The only other aspect which the prosecution seems to be relying upon is the recovery of the five phones from the bush behind the bus stop at the instance of the petitioner which belong to the assailants. While the admissibility of this recovery would have to be proved during trial, mere possession of the phones of the assailants would at best invite an offence punishable under Section 201 IPC (causing evidence of the commission of offence to disappear with an intent of screening the offender). This offence under Section 201 IPC is bailable in all its various formulations as provided in the Section. The other possibility could be under Section 212 IPC which was to harbour the offender which was also bailable as per the provision. Considering the fact that the petitioner, as per the statement of witnesses, was not present on the spot of incident nor in the proximity but was merely implicated on the basis of hearsay by a witness that the assailants could have gone to his office post the event, and also that the recovery from the petitioner would still have to be proved in trial, and even if so proved would implicate him for offences which are bailable in nature, the considered opinion of the Court is that since the trial would take substantial amount of time, there would be no purpose served keeping the petitioner in custody as an undertrial. The investigation stands completed and the charge-sheet has already been filed. The petitioner is not the main accused for firing at the deceased nor was he present at the spot and hence the offence under Section 302 IPC can only rope the petitioner within its ambit once either the element of conspiracy under Section 120B IPC or common intention under Section 34 IPC is proved against him. The previous involvements of the petitioner have either ended up in discharge or in acquittal or compounding or bail and, therefore, it cannot be said that the petitioner has been held guilty for any previous involvement. The mere suspicion or apprehension of the prosecution that the petitioner may end up tampering with evidence or harbouring the co-accused is not sufficient or substantiated at this stage to justify the continued incarceration of the petitioner. The Hon’ble Supreme Court has repeatedly held that it is the duty of Constitutional Courts to ensure there is no arbitrary deprivation of personal liberty and that bail is the rule and jail is an exception. Reference may be made to the decisions of the Hon’ble Supreme Court in inter alia Prasanta Kumar Sarkar v. Ashis Chaterjee, (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 and Prabhakar Tewari v. State of Uttar Pradesh, (2020) 11 SCC 648. The petitioner’s presence at the scene of crime being inconclusive at this juncture can only be confirmed during trial and cannot justify prolonged incarceration of the petitioner at this point of time.

(Adv Vaibhav Tomar )All Rights Reserved

CLICK BELOW READ THE JUDGEMENT

Ravi @ Anil Chaudhary vs state of Delhi:Bail:Judgment