Delhi Riots: Court Grants Bail to Accused, Says Recovery by Police Without Witness 'Gross Violation'

A Delhi court Thursday granted bail to an accused in a case related to north east Delhi riots in February, saying though a video footage showed him carrying a stick, his behaviour was not aggressive. The court said prima facie seizure of an air compressor tank from the accused by the Delhi police in absence of any independent witness was a “gross violation” of the law.

The police also faced criticism from the court for filing two separate complaints for the same incident. It said whether two separate complaints, that were filed regarding the same incident, could be legally clubbed in this case was debatable as they both were of two different dates and investigating officer tried to cover up the defect.

Additional Sessions Judge Vinod Yadav granted bail to 25-year old Sumit, who was arrested for allegedly stealing a scooter, auto wheel parts worth Rs 7 lakhs and a Rs 2.5 lakh air-compressor and setting a shop on fire at Khajuri Khas area. The court granted him the relief on furnishing a bail bond of Rs 20,000 with a surety of like amount and directed him to not tamper with evidence and install “Aarogya Setu” app in his mobile phone.

It said in order to lend assurance that the investigation has been proceeding in a fair and honest manner, it would be necessary for the investigating officer to take independent witness to the discovery, as contemplated under the Indian Evidence Act, and taking only police witnesses to the discovery would render it, at least, not free from doubt. “It is noted that the same has been recovered in absence of any independent public witness(es). A perusal of the Seizure Memo of the compressor reveals that it only bears the signature of police witness namely Constable Sandeep and Constable Satender. The investigating agency has neither bothered to join any independent public witness(es) while effecting the recovery of air-compressor from the applicant (Sumit) to lend some credibility to such recovery nor given any cogent explanation for the failure to do so. “It hardly needs to be said that in order to lend assurance that the investigation has been proceeding in a fair and honest manner, it would be necessary for the Investigating Officer to take independent witness to the discovery/recovery… Prima facie, the seizure of air-compressor in the matter at the instance of applicant seems to be in gross violation of the provisions contained in Section 100 (4) Code of Criminal Procedure,” the court said in its order.

Section 100 (4) of CrPC stated before making a search, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. It further said in the video footage of the riots, though Sumit has been seen carrying a rod/stick in his hands, his behaviour was not aggressive and from his physical appearance he appeared to be “cool, calm and composed”. It noted that complainant Yakub, whose shop was allegedly set on fire by the rioters, was a tenant under Sumit’s father and there has been discord among them regarding payment of rent/electricity charges.

“He (Sumit) is nowhere seen setting on fire the articles or the shop in question. He simply appears to be walking around the fire with a rod/stick in his hand, probably thinking of some way(s) to douse the fire. Admittedly, the applicant (Sumit) did not go to any other street/gali with the rod/stick in his hands, instead he is just seen roaming/strolling around his shop, probably with an intention to save it from the rioters, as his family resides at the first floor of the building. “Be that as it may, admittedly the atmosphere at or around the area in question was very tense on the date of incident. Some articles were burning in front of the shop of applicant. What a person of normal prudence is expected to do in such circumstances. The answer is his/her first preference would be to save it from the clutches of rioters,” the court said in its order. On two separate complaints for same incident, the court said “the IO tried to cover up the defect by recording the statement of complainant Yakub on March 18 to the effect that the incident in his case had taken place on February 25, instead of February 24, but in the report filed in the matter in the magistrate court on September 7,2020, it was mentioned that the incident had taken place on February 24,” it noted.

It further said there was no substance in the arguments of the Special Public Prosecutor that Sumit was not entitled to bail as his father, co-accused in the case, was absconding. “It is a matter of record that the applicant has been in custody since June 27, 2020, and he cannot be held liable for the police inaction in arresting his father in the matter,” the court said.

During the hearing, Special Public Prosecutor Amit Prasad, appearing for the police, opposed the bail plea saying in the video footage, Sumit can be categorically seen carrying a rod in his hand and being part of the riotous mob. Sumit’s counsel argued that he has been falsely implicated in the case merely on account of being spotted in a viral video while standing outside his residence trying to save his property from getting damaged.

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