Ba:r & Bench (,ench.com)...Rajeev Nagar Delhi Age 60 Yrs HC Munavar Verified 4. Irfanuddin S/o...

IN THE COURT OF DR. KAMINI LAU : JUDGE (MACT)01(CENTRAL) TIS HAZARI COURTS, DELHI

FIR No. 250/2019PS – Darya GanjU/S – 147/148/149/436/427/323/186/353/332/120B/34 IPC & Sec. 3/4

of Prevention of Damage of Public Property Act, 1984.

1. Bail Application No. 2878/2019State vs. Zaid Ali

2. Bail Application No. 2879/2019State vs. Rehan Khan

3. Bail Application No. 2873/2019State vs. Amir

4. Bail Application No. 2875/2019State vs. Mohd. Danish

5. Bail Application No. 2877/2019State vs. Mohd. Asfaq

6. Bail Application No. 2874/2019State vs. Haider Ali

7. Bail Application No. 2876/2019State vs. Danish Malik

8. Bail Application No. 2872/2019State vs. Mohd. Athar

9. Bail Application No. 2866/2019State vs. Sabeel Ahmed

10. Bail Application No. 2854/2019State vs. Abbas Ahmed

FIR No. 250/2019, PS Darya Ganj, Bail order dated 09.01.2020 Page No. 1 of 13

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11. Bail Application No. 2851/2019State vs. Mohd. Ali Ansari

12. Bail Application No. 2850/2019State vs. Furqaan

13. Bail Application No. 2849/2019State vs. Irfanuddin

14. Bail Application No. 2853/2019State vs. Atif

15. Bail Application No. 2852/2019State vs. Mohd. Shamsher

09.01.2020

All the above bail applications are taken up together

being arising out of the same FIR.

Present: Sh. Pankaj Bhatia Ld. Addl. PP for the State with IO SI

Santosh Kumar.

Ms. Rebecca John, Ld. Senior Advocate with Ms. Tara

Narula and Sh. Zahid Ali Advocates for all the

applicants/ accused.

All the bail applications have been transferred to this court

pursuant to the orders of the Ld. District & Sessions Judge (HQs), Delhi

dated 07.01.2020.

These applications under Section 439 Cr.P.C. have been

filed for grant of bail to the applicants / accused namely Zaid Ali,

Rehan Khan, Amir, Mohd. Danish, Mohd. Asfaq, Haider Ali, Danish

Malik, Mohd. Athar, Sabeel Ahmed, Abbas Ahmed, Mohd. Ali



Ansari, Furqaan, Irfanuddin, Atif and Mohd. Shamsher. It is

submitted that the applicants/ accused are innocent and have been falsely

arraigned in the present FIR and that there are no allegations against any

specific individual of causing deterrence to any public servant in

carrying out his official duty. It is also submitted that there is nothing on

record to establish any assault on any police official nor any destruction

of public property alleged so as to attract the provisions of PDPP Act. It

is further submitted that there is no reasonable basis on which the police

have identified the accused persons who have been arrested as those

responsible for the alleged act of setting the said vehicle on fire. It is

also submitted that the alleged incident had taken place on the evening of

20.12.2019 and in the cover of darkness it is highly unlikely for any

particular individual to be clearly visible and identifiable and the police

has in an arbitrary manner arrested the applicants/ accused. It is further

submitted that it is clearly visible from thousands of videos which were

being made at the said protest that it was a peaceful protest and there was

no violence from the end of any of the protesters. It is also submitted that

a large number of persons were present in the area at the time when the

police loaded them into buses due to the fact it was tine for evening

prayers and being a Holiday, persons who had merely come to offer

Namaz and eat around Jama Masjid area with their families or friends

were picked up by the police.

A detail reply has been filed by the Investigating Officer.

As per the allegations on 20.12.2019 there was a protest by the public at

large in view of the Citizenship Amendment Act and the National

Register of Citizens. Some of the protesters were present in the area of



Walled City near Jama Masjid and police personnel in large numbers

were deployed in the area to maintain law and order and one Sh.

Chandershekhar @ Ravan who is the President of Bhim Army party was

also present at the spot and made a speech that was likely to incite

violence. As per the allegations pursuant to this speech thousands of

protesters started proceeding towards Jama Masjid area from the side of

Delhi Gate. At about 6:00 PM the crowd congregated near Delhi Gate

and reached outside the office of DCP, Central District and also outside

Police Station Daryaganj and the protesters were shouting slogans

against the central government and also planning to proceed to Jantar

Mantar. Further, as per the allegations that the protesters turned violent

and started throwing stones at the police personnel who were

deployed at the spot on which police have used a water cannon in order

to disperse the crowd but the group of persons turned violent and all of a

sudden burnt the car bearing No. DL5CQ3038. It has been alleged

that several persons were detained who were a part of the unruly mob

that set the above stated vehicle on fire and on the basis of these

allegations, the applicant/ accused were arrested by the police.

As per the report of the Investigating Officer, the

investigations have now been transferred to the Special Investigation

UnitI, Crime Branch, Delhi and during investigations, the recovered

CCTV Footage of dated 20.12.2019, which was of poor quality, was

examined and since the incident took place in late evening and therefore

it is hard to identify the faces. It is reported that the media houses (both

print and electronic) have been issued notices to provide the videos/

photographs of the spots covered by them which are still awaited and the



CCTV cameras installed in the vicinity/ adjoining areas, where the

alleged offences took place are being identified and the CCTV footage is

being taken and scrutinized.

Ld. Addl. PP for the State has opposed the bail applications

of the applicants/ accused on the ground that the allegations in the

present case are serious and sensitive in nature involving commission of

offence against the Constitutional system of the Country. It is further

submitted that the investigations of the present case is at the initial stage

and all the applicants / accused have been arrested from the crime scene

when they were verymuch in action in pursuance of a well planned

conspiracy. Ld. Addl. PP for the State had further argued that during

investigations it was emerged that a call was given for procession against

CAA and NRC and a large gathering assembled at Jama Masjid for the

Driday Namaz which concluded at around 1:30 PM and a sizable number

of people left Jama Masjid while other remained present there. The

remaining crowd continued to protest / shout slogans and they were

joined by some other persons who reached there from Tans Yamuna area

(including some of the accused persons) and at about 5:30 PM they

started to proceed towards New Delhi and they were stopped at Delhi

Gate near DCP Office on which they became violent. It is pointed out

that as many as Seventeen police personnel were injured in discharge of

their official duty and two media personnel also received injuries. It is

further submitted that the accused persons not only caused damages to

private property but also damaged the public property at large. It is also

submitted that the Call Detail Records of the accused persons are being

obtained and linked with the positions on the date of incident. Ld. Addl.



PP for the State has also pointed out that the applicant namely Danish

Malik is involved in another case bearing FIR No. 337/2016, PS Gokul

Puri, U/s. 399/402/34 IPC 7 25 of Arms Act and the applicant/ accused

Amir is also involved in another case bearing FIR No. 119/2009, PS

GTB Enclave, U/s. 326/307/34 IPC. Ld. Addl. Public Prosecutor has

placed on record the list of accused who have been duly identified by

police personnel detailed as under:

Sr.No.

Name and Address of the accused Identified by Whether addressverified or not

1. Danish Malik S/o Zahir Malik R/o495 Gali No5 Old Mustafabad Delhi.Age 24 Yrs.

Ct. Namichand Verified

2. Sabeel Ahmed S/o Waseem AhmedR/o 1063 Gali No10 4th Pusta GarhiMandu Jafrabad Delhi Age 24 Yrs.

Ct. Anil Verified

3. Mohd Asfak S/o Ali Baks R/o GaliNo11 D Block Shri Ram ColonyRajeev Nagar Delhi Age 60 Yrs

HC Munavar Verified

4. Irfanuddin S/o Vakiluddin R/o C991Gali No17 Rajeev Nagar Shri RamNagar Delhi Age 24 Yrs.

Ct. Inderjeet Verified

5. Amir S/o Gappu R/o HNo42 JantaColony Babarpur Shahdara Delhi. Age25 Yrs.

Ct. Deepak Giri Verified

6. Mohd Athar S/o Mohd. Sabir R/o C59 Gali No4 Shri Ram Colony RajeevNagar Delhi Age 22 Yrs.

Ct. Deepak Giri Verified

7. Atif S/o Jaliluddin R/o Gali No8 NearKhadde wali Masjid New Usman PurDelhi. Age 22 Yrs.

HC Chhagan Lal Verified

8. Rehan Khan S/o Afroj Khan R/o E439/f49 Idgah Road Janta ColonyWelcome Seelampur Delhi. Age24yrs.

ASI Amrish Verified



9. Haider Ali S/o Kale Khan R/o 143Gali no4 Vijay Park Maujpur Delhi.Age22 yrs.

HC Kishan Lal Verified

10. Furkan S/o Mohd Shamim R/o 1105Gali No18/4 E2 Block Nehru ViharMustafabad Delhi. Age23 Yrs.

HC Kishan Lal Verified

11. Mohd Zaid S/o Mohd Islam R/o HNoA82 Gali No8 Shastri Park Delhi.Age24 yrs.

HC Sriram Verified

12. Mohd Shamsher Shah S/o MohdDukhi Shah R/o Gali No8 3rd PustaNew Usman Pur Delhi. ParmanantAdd Vill. Asuwa Panchyat Distt.Darbhanga Bihar Age 23 yrs.

HC Javed Verified

13. Abbas Ahmed S/o Altaf Ahmed R/oG267 Rehmat Ali Road Jaipal ChowkShahid nagar Gaziabad UP Age 32 yrs.

ASI Ravinder Verified

14. Danish S/o Kasim R/o B881 GaliNo13/4 Subhash Mohalla Bhajan PuraDelhi. Age22 Yrs.

ASI Jaswant Verified

15. Mohd Ali S/o Mohd Mahu Alam R/oGali No1 Bharat Dairy Chand BaghBhajanpura Delhi. Age25 Yrs.

Ct. Girdhari Lal Verified

I have considered the rival contentions. The argument that

the protest was completely peaceful does not primafacie appear to be

believable particularly in the light of the damage caused to the vehicle

and injuries caused not only to the police personnel on duty but also to

media persons covering the protest (as reflected in the MLCs). We, the

people of India, have given to ourselves the Constitution and agreed to

disagree. In our democratic setup we have a Fundamental Right to

Peaceful Protest guaranteed by the Constitution, which right cannot be

curtailed by the State. However, at the same time, our constitution

strikes a fine balance between the Rights and Duties. While exercising



our right of peaceful protest, it is our duty to ensure that no

corresponding right of another is violated. Violence or destruction of

property is totally unacceptable. There has to be zero tolerance for any

kind of violence or damage to property whether private or public.

Lawlessness cannot be encouraged.

Now coming to the present case, I may observe that Firstly,

the addresses of all the applicants/ accused have been verified, the report

of which has been placed on record. Secondly, the CCTV footage upon

which Investigating agency is placing their reliance is reported to be of a

poor quality which admittedly does not reflect any of the accused

persons. Thirdly, I am informed I am informed by the IO that another

CCTV is installed at the office of the DCP (Central) Darya Ganj and

repeated requests have been made to the office of DCP (Central) and

also a notice under Section 91 Cr.P.C. has been given for providing the

CCTV footage of the incident but till date no such footage has been

provided. Fourthly, in so far as the aspect of damage to property is

concerned, the case put forth is that a private car was damaged. The

Investigating Officer has informed that till date no assessment of damage

whatsoever has been made. Fifthly, I note that none of the applicants/

accused have any antecedents except for the applicant/ accused Danish

and Amir who are involved in one case each. In so far as the applicant/

accused Amir is concerned, I am informed that he was a juvenile in the

year 2009 and as on date no case is pending against him but the

Investigating Officer is unable to confirm the status of the cases pending

against the applicants/ accused Danish Malik and Amir. Sixthly, it is



submitted that seventeen police personnel and two media persons had

sustained injuries which were treated at LNJP Hospital. Despite the fact

that the MLCs were prepared on 20.12.2019, till date no opinion has

been obtained on the same by the Investigating Agency. In this regard, it

has become necessary for me to observe that repeated adjournments

were given for the said purpose, on 08.01.2020 specific directions were

also issued to the IO to obtained the opinion on the MLC but the

Investigating Officer has instead of getting the opinion, placed on record

the Circular of the GNCT of Delhi dated 31.12.2019 bearing F.No.

60/MB/P&R/2017/H&FW/CD#112463968/oshrnr/458459 issued by

the Health and Family Welfare Department, 9th Level, AWing, Delhi

Secretariat, I.P. Estate, New Delhi wherein all the hospitals have been

directed to ensure that the result of the MLC is given by the examining

doctor within 15 days of the receipt of the same. On the face of it, the

said circular relates to MLCs in Accident cases where claims have to be

filed in the MACT Court as directed by the Delhi High Court in the case

of Rajesh Tyagi & Ors. Vs. Jaibir Singh and I fail to understand its

relevant in the present case. When this Court inquired from the

Investigating Officer as to whether any refusal by the Incharge MRD

Section has been given in writing or if he has approached the Medical

Superintendent concerned, the IO SI Santosh Kumar submits that he

only went to the Incharge MRD Section. I am not satisfied by the

manner in which the Investigating Officer SI Santosh Kumar has tried to

skirt the issue and his failure to place on record the opinion on the MLCs

cannot be a ploy to further curtail the liberties of the applicants/ accused



who are in Judicial Custody for the last more than 20 days. Sixthly, I

may note that the provisions invoked in the present case are, by and

large, bailable and triable by Magistrate which are detailed as under:

Sr.No.

Offence Bailable/ Non Bailable Punishment

1. 147 IPC Bailable Two years

2. 148 IPC Bailable Three Years

3. 149 IPC Accordingly as offencesbailable or non bailable

Same as for the offence

4. 186 IPC Bailable Three Years

5. 323 IPC Bailable One Year

6. 332 IPC Non Bailable Three Years

7. 353 IPC Non Bailable Two Years

8. 427 IPC Bailable Two Years

9. 436 IPC Non Bailable Ten Years/ Life

10. 3 of Damage toPublic Property Act

Non Bailable Five Years

11. 4 of Damage toPublic Property Act

Non Bailable Not less than one year butmay extend to ten years

In so far as the provisions of Section 436 IPC and Sections

3 and 4 of Damage to Public Property Act are concerned, it is

debatable as to whether the said provisions can be invoked against the

applicants/ accused under the circumstances as put forth by the

Investigating Agency and this can only be ascertained after the

investigations are complete. Lastly, the accused are no longer required

for any investigations and are in judicial custody for last twenty days.



This being the background, the applicants/ accused namely

Zaid Ali, Rehan Khan, Amir, Mohd. Danish, Mohd. Asfaq, Haider

Ali, Danish Malik, Mohd. Athar, Sabeel Ahmed, Abbas Ahmed,

Mohd. Ali Ansari, Furqaan, Irfanuddin, Atif and Mohd. Shamsher

are admitted to bail on their furnishing a personal bond to the tune of

Rs.25,000/ each with one local surety of the like amount each to the

satisfaction of the Ld. MM / Link MM / Duty MM, subject to the

following conditions:

1. That during the period of bail, the applicants/ accused shall

not try to contact or influence, directly or indirectly, any of

the witnesses of the present case;

2. That the applicants / accused shall not misuse the benefit of

bail by indulging in commission of similar offence in future;

3. That the applicants/ accused shall appear before the SHO

Police Station Darya Ganj on every Saturday for Four

Weeks from the date of their release and thereafter on last

Saturday of every month till further orders by the Ld. Trial

Court;

4. That the applicants/ accused shall surrender their Passports,

if any, with the Investigating Officer;

5. That the applicants / accused shall intimate the court in case

of change of their addresses.

It is clarified that in case if the applicants/ accused are found

to be violating any of the above conditions, the same shall be a ground



for cancellation of bail and the State shall be at liberty to move an

application for cancellation of bail.

I may observe that certain guidelines had been laid down by

the Hon'ble Delhi High Court in the case of “Ajay Verma Vs.

Government of NCT of Delhi” WP (C) 10689/2017 dated 08.03.2018

wherein it was observed and I quote as under:

“......... The trial courts should not only be sensitive butextremely vigilant in cases where they are recordingorders of bail to ascertain the compliance thereof.....

a) When bail is granted, an endorsement shallbe made on the custody warrant of theprisoner, indicating that bail has beengranted, along with the date of the order ofbail.

b) In case of inability of a prisoner to seekrelease despite an order of bail, it is thejudicial duty of the trial courts to undertakea review for the reasons thereof.

c) Every bail order shall be marked on the file.d) It shall be the responsibility of every judge

issuing an order of bail to monitor itsexecution and enforcement.

e) In case a judge stands transferred before theexecution, it shall be the responsibility ofthe successor judge to ensure execution.....”

I note that in the present case the bail bonds have been

directed to be furnished before the Ld. Trial Court/ Ld. MM and hence in

terms of the above observations, the Ld. MM is impressed upon to

inform this court about the following:

1. The date on which conditions imposed by this court are

satisfied;



2. The date of release of prisoner from jail;

3. Date of ultimate release of prisoner in case the prisoner

is in jail in some other case.

The copy of this order be sent to Ld. MM and also to the

Superintendent Jail who shall also inform this court about all the three

aspects as contained in the para herein above. The Superintendent Jail is

also directed to inform this court if the prisoner is willingly not

furnishing the personal bond or in case if he is unable to furnish the

surety or any other reason given by the prisoner for not filing the bonds.

One copy of this order be also sent to the SHO Police Station Darya

Ganj to ensure compliance.

On request, one copy of this order be given dasti to the Ld.

Counsels for the accused and one copy be given to the IO for purposes

of compliance.

All the bail applications are accordingly disposed off.

Announced in the open court (Dr. KAMINI LAU)Dated: 09.01.2020 Judge, MACT01, Central District,

Tis Hazari Courts, Delhi/ 09.01.2020


Ba:r & Bench (,ench.com)...Rajeev Nagar Delhi Age 60 Yrs HC Munavar Verified 4. Irfanuddin S/o...

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