* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.03.2024
Pronounced on: 28.03.2024
+ BAIL APPLN. 2211/2022 & CRL.M.As. 34090/2023 &
34091/2023
BANADIK ..... Applicant
Through: Mr.Manendra Mishra &
Mr.Vikrant Pratap Singh, Advs.
versus
STATE ..... Respondent
Through: Mr.Aman Usman, APP.
Insp. Gurnam Singh.
+ BAIL APPLN. 621/2023
MOHD DANISH ..... Applicant
Through: Mr.M.L. Yadav & Mr.Harish
Chand, Advs.
versus
THE STATE ..... Respondent
Through: Mr.Aman Usman, APP.
Insp. Gurnam Singh.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
1. These Bail Applications have been filed by the Applicant(s)
under Section 439 of the Code of Criminal Procedure, 1973 (in short,
read with Section 482 of the Cr.P.C., praying for the
‘Cr.P.C.’)
Applicant(s) to be released on Bail in FIR No. 191/2021 registered at
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By:SUNIL
Signing Date:28.03.2024
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Police Station: Bara Hindu Rao, North, Delhi, originally under
Sections 302/307/120B/34 of the Indian Penal Code, 1860 (in short,
and Sections 25/27/54/59 of the Arms Act, 1959 (in short,
‘IPC’)
.
‘Arms Act’)
Brief Facts
2. It is the case of the prosecution that on 08.07.2021, at about
9:15 PM, a group of persons stopped the car of the complainant,
namely, Naeem Ahemad, and started quarrelling with him and his
nephew, Muneeb. However, they were over powered by the
complainant with the help of the passersby, and they managed to get
away. After a few minutes, the attackers returned and fired gunshots,
resulting in bullet injuries to two innocent passersby in the crowd.
Both the injured were taken to the hospital where they were declared
as brought dead.
3. The prosecution further alleges that during the investigation, it
was found that there were disputes between Mohd. Muneeb and
accused Danish, who is the applicant in Bail Appln. 621/2023, and
Firojuddin, a co-accused. Mohd. Muneeb had earlier also made a
complaint against the construction raised by the applicant- Mohd.
Danish and Firojuddin, and also filed a petition before this Court
alleging unauthorized construction being carried out by them. The
prosecution alleges that the accused, Firojuddin, in conspiracy with
his father-in-law-Mehtabuddin, and Mohd. Danish, called Mohd.
Muneeb on his mobile and threatened him to settle the matter,
otherwise, to face the dire consequences. However, as the matter was
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By:SUNIL
Signing Date:28.03.2024
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not resolved, Firojuddin, who was in touch with the co-accused Ravi
Sharma and Shoaib through one Anwar @ Hathela, who is alleged to
be running a racket from Tihar Jail, along with the other co-accused,
assembled near the Masjid in front of Kishan Ganj Railway Station,
and conspired to kill Mohd. Muneeb. Accused Firojuddin and Mohd.
Danish, along with hired criminals, that is, co-accused Ravi Sharma,
Rahul @ Charlie, Himanshu @ Rohan, Shoaib, Sharafat, Banadik @
Sunny/applicant in Bail Appln. 2211/2022, and Satender, assembled
near the Masjid in front of Kishan Ganj Railway Station, consumed
alcohol, and, thereafter, as per the plan, Rahul @ Charlie went to
Sanjita Hospital to identify Muneeb. After identification, Rahul @
Charlie stopped the car of Muneeb, and along with Himanshu @
Rohan, Ravi Sharma, Shoaib, Satender, Banadik @ Sunny/the
applicant herein, and Sharafat, attacked on Mohd. Muneeb, while
Firojuddin and Danish were standing near the place of the incident.
Rahul @ Charlie fired upon Mohd. Muneeb with an intention to kill
him, however, two passersby died due to the bullet injuries.
Thereafter, all the accused persons ran away from the spot.
4. The prosecution alleges that a pistol and two live cartridges
were later recovered from the possession of accused Banadik @
Sunny/the applicant herein. A mobile phone was also seized.
5. The prosecution alleges that during the investigation, it was
found that Banadik @ Sunny has made 158 calls with the co-accused
Satender during the period 05.06.2021 to 08.07.2021; with Shoaib
around 66 calls from 11.06.2021; and with co-accused Sharafat 2
(two) calls from 09.07.2021. It is alleged that this also shows
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conspiracy amongst the co-accused.
6. It is further alleged that there is a voice message between
Sohaib and Firojuddin. The ballistic report with respect to the weapon
recovered from Rahul @ Charlie has been received as positive.
7. Based on the above, charge-sheet has also been filed.
Submissions by the learned counsels for the applicants
8. The learned counsels for the applicants submit that though the
entire case of the prosecution is based on an allegation that Mohd.
Danish had an enmity with Muneeb and was present at the spot, none
of the eyewitnesses have deposed to the presence of the accused
Mohd. Danish at the spot.
9. They further submit that as far as Banadik @ Sunny is
concerned, he has no association with Mohd. Danish or Firojuddin. He
has been implicated only on the basis of his call records, and alleged
conversations with the co-accused Satender, Sohaib, and Sharafat.
These calls were from a period much prior to the date of the alleged
hatching of the conspiracy, and clearly show that they were known to
each other even prior to the alleged conspiracy being hatched. They
further submit that, in any case, the Call Data Records (CDRs) cannot
act as a proof of any alleged conspiracy.
10. They further submit that the applicants are not seen in the
CCTV footage that the prosecution relies upon.
11. They submit that the applicants have been in custody since
13.07.2021 and have clean antecedents.
12. The learned counsel for Banadik @ Sunny submits that, as far
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this applicant is concerned, though he was also named in FIR
No.187/2021 registered with Police Station: Special Cell under
Sections 186/353/30 of the IPC and Sections 25/27 of the Arms Act,
in custody of which case he is supposed to have made the alleged
disclosures, he has been granted bail in the said case.
Submissions by the learned APP
13. On the other hand, the learned APP, while admitting, on
instructions from the IO, that the applicants are not seen in the CCTV
footage being relied upon by the prosecution, submits that, in the
present case, there are other material available to corroborate the
version of the prosecution, in form of statements of various witnesses,
which establishes the enmity between Mohd. Danish and Muneeb, the
actual targets.
14. The learned APP, through a chart, tried to show the connection
between Mohd. Danish and the other co-accused. He submits that they
were all in contact with each other around the time of the incident, and
this itself shows how the conspiracy was planned and then executed.
15. He further submits that Mohd. Danish has also been accused of
threatening a witness while the applicant-Mohd. Danish was out on
interim bail, due to which, vide an order dated 09.02.2023 passed by
this Court in W.P.(Crl) 385/2023, Mohd. Muneeb v. State, protection
has been granted to the said witness in the form of personal security to
Mohd. Muneeb. He submits that vide judgment dated 02.03.2023
passed in Bail Appln. 644/2023, titled Mohd.Danish v. State of NCT
of Delhi, the application filed by the applicant-Mohd.Danish seeking
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extension of interim bail granted to him, was also dismissed.
Analysis and findings
16. I have considered the submissions made by the learned counsels
for the parties.
17. From the above, it is apparent that both the applicants are not
seen in the CCTV footage of the incident. As far as the accused Mohd.
Danish is concerned, though he was known to the eye-witnesses, they
have stated that he was not present at the spot.
18. The entire story of the prosecution hinges on the alleged CDRs,
which show conversation between the co-accused. The relevance of
the CDRs to bring home the accusations against the applicants, shall
be considered by the learned Trial Court once the evidence is
completed. Reference in this regard can be had to the judgement of the
Supreme Court in State (By NCB) Bengaluru v. Pallulabid Ahmad
Arimutta & Anr., (2022) 12 SCC 633, wherein it was held as under:
12. ...The CDR details of some of the accused
“
or the allegations of tampering of evidence on
the part of one of the respondents is an aspect
that will be examined at the stage of trial...
”
19. The applicants have been in custody since 13.07.2021, and even
charges have not been framed till date. It is to be borne in mind that
long period of incarceration militates the most important right as
conferred by Article 21 of the Constitution of India.
20. It is not stated that the applicants are flight risk. It needs no
emphasis that the purpose of keeping the accused in custody is to
ensure the presence of the accused at the trial. The object of custody is
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neither punitive not preventive in nature. In this regard, reference is
made to the judgement of the Supreme Court in Sanjay Chandra v.
Central Bureau of Investigation, (2012) 1 SCC 40, wherein it was
opined as under:
21. In bail applications, generally, it has
“
been laid down from the earliest times that the
object of bail is to secure the appearance of
the accused person at his trial by reasonable
amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of
liberty must be considered a punishment,
unless it is required to ensure that an accused
person will stand his trial when called upon.
The courts owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
22. From the earliest times, it was
appreciated that detention in custody pending
completion of trial could be a cause of great
hardship. From time to time, necessity
demands that some unconvicted persons
should be held in custody pending trial to
secure their attendance at the trial but in such
cases, “necessity” is the operative test. In this
country, it would be quite contrary to the
concept of personal liberty enshrined in the
Constitution that any person should be
punished in respect of any matter, upon which,
he has not been convicted or that in any
circumstances, he should be deprived of his
liberty upon only the belief that he will tamper
with the witnesses if left at liberty, save in the
most extraordinary circumstances.”
21. As far as the submission of the learned APP that the applicant-
Mohd. Danish has earlier threatened the witness-Muneeb, and his
reliance on the orders dated 09.02.2023 and 02.03.2023, are
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concerned, it is to be noted that the applicant-Mohd.Danish has
remained in custody for more than one year thereafter. The applicants
cannot be made to face further incarceration while trial is not
proceeding. Adequate safeguard is being place in the present order for
ensuring that the applicant does not misuse his liberty and, if he does
so, the prosecution is not powerless and can move appropriate
application seeking cancellation of the bail granted to him.
22. Keeping in view the above circumstances, the applicants are
granted bail in FIR No.191/2021 registered at Police Station: Bara
Hindu Rao originally under Sections 302/307/120B/34 of the IPC and
Sections 25/27/54/59 of the Arms Act, on furnishing personal bond(s)
in the sum of Rs.50,000/- (each) with one local surety each of the like
amount to the satisfaction of the learned Trial Court, and further
subject to the following conditions:
i. The Applicant(s) will not leave the country without the
prior permission of the learned Trial Court.
ii. The Applicant(s) shall provide his permanent address to
the learned Trial Court. The Applicant(s) shall also intimate the
Court, by way of an affidavit, and to the Investigating Officer
(IO) regarding any change in his residential address.
iii. The Applicant(s) shall appear before the learned Trial
Court as and when the matter is taken up for hearing.
iv. The Applicant(s) shall provide all/latest/fresh mobile
numbers to the IO concerned, which shall be kept by the
applicant(s) in a working condition at all times and shall not be
switched off or changed by him without prior intimation to the
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learned Trial Court and the IO concerned. The mobile location
be kept on at all times.
v. The Applicant(s) shall not indulge in any criminal
activity and shall not communicate with or come in contact,
directly or indirectly, with any of the prosecution witnesses, or
tamper with the evidence of the case while being released on
Bail.
vi. In case the Applicant(s) is found involved in another case
or in any manner misuses his liberty, it will be open to the
prosecution to file an appropriate application seeking
cancellation of his Bail in the present case as well.
23. Needless to state, any observation touching upon the merits of
the case is purely for the purposes of deciding the question of grant of
Bail and shall not be construed as an expression on the merits of the
matter.
24. The Bail Applications are disposed of in the above terms.
Pending application is also disposed of being infructuous.
25. Copy of this order be sent to the Jail Superintendent for
information and necessary compliance.
NAVIN CHAWLA, J
MARCH 28, 2024/rv/RP
Click here to check corrigendum, if any
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Digitally Signed
By:SUNIL
Signing Date:28.03.2024
12:46:18