Delhi Riots Cases : Can Liberty Of All The Accused Be Curtailed Till Trial Ends? Delhi High Court Asks Police

While hearing a batch of bail applications in North-East Delhi riots matter, the Delhi High Court today posed the question as to what should be the parameters for grant of bail in a case involving charges under Section 149 (Unlawful Assembly) read with Section 302 (Murder). Considering the large number of people arrested and the likelihood of varied and, in some cases, lesser punishment to a few, Justice Subramonium Prasad asked whether the liberty of all the accused under Article 21 can be curtailed till the completion of the trial.

Referring to Gurcharan Singh & Ors vs State (Delhi Administration), Additional Solicitor General, SV Raju argued that during the initial investigation of a case to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. In the instant case, irrespective of what the charges are finally upheld, he contended that the usual parameters for grant of bail like the triple-test would not be applicable given  the gravity of offence and punishment prescribed under law.

As regards Gurucharan judgement, Justice Prasad highlighted the observation that nothing in Section 439(1), Cr. P.C restricts the High Court in granting bail to persons accused of an offence punishable with death or imprisonment for life. Noting that the criteria separated by semi-colons have to be read in the juxtaposition of one another, he emphasised the following part laying down over-riding considerations in granting bail.

"The over-riding considerations in granting bail to which we adverted to earlier and which are common in the case of Section 437(1) 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 of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. "

The Court also asked whether, at the time of granting bail, despite the absence of video evidence and having spent over 15 months in detention, should the accused persons be kept in continued detention. ASG SV Raju responded that the video is not sacrosanct in proving the prosecution's case but is only to corroborate the statements of the eye-witnesses. He noted that,

"If an accused is seen and identified in a video it is a plus-point. However, the mere absence in the video will not exonerate the accused of the charges," he argued.

The ASG referred to several statements disclosing that the violence was not at the spur of the moment but rather a carefully planned event. He read portions from the statements where there were references to a secret meeting held a day before the protest, where code-words for pistols, petrol bombs and sticks were decided. Arguing to establish common intention, the ASG noted that people from all corners do not just march out with lathis and swords for self-defence; furtherance of the said meeting purported to spread violence.

 Amit Prasad, Additional Public Prosecutor, showed videos to the Court where few men, said to be the accused, were seen holding sticks, speeding, gesturing for people to gather, and diverting CCTV camera.

The hearing will continue tomorrow.

(Case : Md.Arif vs State(BA 774/2021) and connected cases)