"Continued Detention Not Required For Investigation": Delhi High Court Grants Bail To 8 Accused Of Vandalizing CM Arvind Kejriwal's Residence

The Delhi High Court on Tuesday granted bail to 8 men accused of vandalising Chief Minister Arvind Kejriwal's official residence recently, observing that their continued detention in judicial custody was not required for proper investigation of the offences.

Justice Asha Menon further noted that there was no possibility of the applicants tampering with the evidence or inducing or threatening any witness and that nothing was brought on the record by the State to suggests that they would not appear before the court when required.

"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," the Court said.

A protest was held near the residence of the Chief Minister of Delhi despite the Deputy Commissioner of Police, Delhi declining permission to the applicants to hold such a protest.

It was 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 was claimed, were obstructed and criminal force used on them and a few of them had sustained injuries.

The FIR was registered under sec. 186, 188, 353, 332, 143, 147 and 149 of IPC and sec. 3 of the Prevention of Damage to Public Property Act, 1984.

All 8 accused were recently denied bail by a Sessions  Court vide order dated April 4, 2022 observing that their fundamental right to peacefully protest was exceeded by them intentionally.

During the course of hearing, arguments were centralized on the non- compliance of sec. 41(1)(a) of the Cr.P.C. It was argued on behalf the applicants that since the police had failed to issue a notice under Section 41A Cr.P.C., the applicants ought to have been straightway admitted to interim bail. However their bail applications were improperly rejected by the Metropolitan Magistrate and the Additional Sessions Judge.

It was further argued that when the two sets of barricades were jumped over by the protesters, cognizable offences under which the FIR had been registered could be said to have been committed in the presence of the Police Officials and yet, no arrests were made.

Furthermore, it was submitted that the provisions of Section 41A Cr.P.C. kicked in and in terms of the judgment of Arnesh Kumar case, the Police had to issue notice before seeking to arrest the applicants.

It was also submitted that the applicants were arrested later in the night between 9.00 and 9.30 P.M. from their houses and thus, the statutory requirements had been given a go by.

On the other hand, it was argued by the State that the Deputy Commissioner of Police had declined permission to the protesters to hold their dharna, however, despite the same, they had organised the protest.

Furthermore, it was argued that 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 further submitted that there was a fear of repetition of the offence and therefore sec. 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 threatened not to spare the Chief Minister of Delhi till he apologised for the comments made by him in the Floor of the House.

Observations of the Court

The Court was of the view that it was farfetched to claim that a repeat offence would occur because of a tweet. Therefore, there was no material on which any Police Officer could be satisfied that the applicants were required to be prevented from committing any further offence.

While finding force in the arguments of 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 sec. 41(1)(a) Cr.P.C., the Court said:

"However, admittedly, all the applicants have been arrested subsequently at night around 9.00 or 9.30 P.M from their homes. 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."

"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."

The Court further observed that there was 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 had been alleged against the applicants.

"The applicants are mostly in their twenties except for three who are older," the Court noted.

Noting that the applicants had been in custody for 14 days, the Court said that others who had been identified in the photos had been issued notices under sec. 41A Cr.P.C and were 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," the Court said.

Accordingly, bail pleas were allowed.

Case Title: SUNNY v. STATE OF N.C.T. OF DELHI and other connected matters

Citation: 2022 LiveLaw (Del) 316

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