Constitutional Duty Of Court To Prevent Arbitrary Deprivation Of Personal Liberty By Excess Of State Power: High Court In Delhi Riots Case

"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," observed the Delhi High Court while granting bail to 6 accused persons in a riots case.

Justice Subramonium Prasad granted bail to Mohd. Tahir, Shahrukh, Mohd. Faizal, Mohd. Shoaib, Rashid and Parvez in a case alleging that a mob caused vandalism, put on fire a sweet shop as a consequence of which a 22 year old boy namely Dilbar Negi died after sustaining burn injuries. (FIR 39/2020 PS Gokulpuri)

"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," the Court added.

The Court further said that the applicability of sec. 149 (unlawful assembly) of IPC, specifically read with sec. 302 (murder), cannot be done on the basis of vague evidence and general allegations.

"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. There cannot be an umbrella assumption of guilt on behalf of every accused by the Court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter therein. This principle, therefore, gains utmost importance when the Court considers the question of grant or denial of bail," the Court said.

The said observation was made as during the course of hearings, the prosecution had vehemently opposed the grant of bail to the accused persons. It was submitted that while the riots started in the morning and continued till late in the night, it cannot be said that the accused persons were part of the riotous mob in the afternoon and not during the night.

"As we apply the principle of sec. 149 IPC as laid down by the Supreme Court, it is not that each accused or the role played by each accused has to be shown at least at the time of arguing bail application. If we're able to show that they are part of the riotous mob which is responsible for committing riots which led to death of Dilbar Negi, atleast for the purpose of bail prima facie we need not go further," he had argued.

Accordingly, the Court also observed thus:

"Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring social security remains intact. It is the intricate balance between 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."

The Court also noted that all the accused persons were under incarcerated for about 22 months and that the authenticity of all the materials against them are to be tested during the course of trial and cannot form the basis for their prolonged incarceration.

Deceased Dilbar Singh Negi used to work as a waiter in Anil sweet corner. The FIR was registered under Section 147 (Punishment for rioting), 148 (Rioting, armed with deadly weapon), 149 (Unlawful assembly), 302 (Murder), 201 (Causing disappearance of evidence), 436 (Mischief by fire) and 427 (Mischief causing damage) of IPC at police station Gokalpuri.

After the registration of FIR, the investigation of the case was taken up by the local police. Further investigation of the case was transferred to the SIT of Crime Branch.

During the course of investigation, twelve accused persons were arrested in the case. After investigation, charge sheet was filed on June 4, 2020.

According to the statements of public witnesses, it was stated that a riot took place where the rioters pelted stones, chanted anti Hindu slogans, ransacked and torched many shop and houses and also entered into a building and killed the deceased, who was hiding there and burnt his body along with the building.

Case Title: Mohd. Tahir & other connect bail pleas v. State

Citation: 2022 LiveLaw (Del) 31

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