Ba:r & Bench (www.barandb,ench.com)

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

FIR No. 250/2019 PS – Darya Ganj U/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. 2878/2019 State vs. Zaid Ali

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

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

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

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

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

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

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

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

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

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

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

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

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

15. Bail Application No. 2852/2019 State 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

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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

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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 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

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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 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.

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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. Name and Address of the accused Identified by Whether address No. verified or not 1. Danish Malik S/o Zahir Malik R/o Ct. Namichand Verified 495 Gali No­5 Old Mustafabad Delhi. Age 24 Yrs. 2. Sabeel Ahmed S/o Waseem Ahmed Ct. Anil Verified R/o 1063 Gali No­10 4th Pusta Garhi Mandu Jafrabad Delhi Age 24 Yrs. 3. Mohd Asfak S/o Ali Baks R/o Gali HC Munavar Verified No­11 D Block Shri Ram Colony Rajeev Nagar Delhi Age 60 Yrs 4. Irfanuddin S/o Vakiluddin R/o C­991 Ct. Inderjeet Verified Gali No­17 Rajeev Nagar Shri Ram Nagar Delhi Age 24 Yrs. 5. Amir S/o Gappu R/o HNo­42 Janta Ct. Deepak Giri Verified Colony Babarpur Shahdara Delhi. Age 25 Yrs. 6. Mohd Athar S/o Mohd. Sabir R/o C­ Ct. Deepak Giri Verified 59 Gali No­4 Shri Ram Colony Rajeev Nagar Delhi Age 22 Yrs. 7. Atif S/o Jaliluddin R/o Gali No­8 Near HC Chhagan Lal Verified Khadde wali Masjid New Usman Pur Delhi. Age 22 Yrs. 8. Rehan Khan S/o Afroj Khan R/o E­ ASI Amrish Verified 439/f­49 Idgah Road Janta Colony Welcome Seelampur Delhi. Age­24 yrs.

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9. Haider Ali S/o Kale Khan R/o 143 HC Kishan Lal Verified Gali no­4 Vijay Park Maujpur Delhi. Age­22 yrs. 10. Furkan S/o Mohd Shamim R/o 1105 HC Kishan Lal Verified Gali No­18/4 E­2 Block Nehru Vihar Mustafabad Delhi. Age­23 Yrs. 11. Mohd Zaid S/o Mohd Islam R/o HNo­ HC Sriram Verified A­82 Gali No­8 Delhi. Age­24 yrs. 12. Mohd Shamsher Shah S/o Mohd HC Javed Verified Dukhi Shah R/o Gali No­8 3rd Pusta New Usman Pur Delhi. Parmanant Add Vill. Asuwa Panchyat Distt. Darbhanga Bihar Age­ 23 yrs. 13. Abbas Ahmed S/o Altaf Ahmed R/o ASI Ravinder Verified G­267 Rehmat Ali Road Jaipal Chowk Shahid nagar Gaziabad UP Age 32 yrs. 14. Danish S/o Kasim R/o B­881 Gali ASI Jaswant Verified No­13/4 Subhash Mohalla Bhajan Pura Delhi. Age­22 Yrs. 15. Mohd Ali S/o Mohd Mahu Alam R/o Ct. Girdhari Lal Verified Gali No­1 Bharat Dairy Chand Bagh Bhajanpura Delhi. Age­25 Yrs.

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 , 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

FIR No. 250/2019, PS Darya Ganj, Bail order dated 09.01.2020 Page No. 7 of 13 Ba:r & Bench (www.barandb,ench.com) 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

FIR No. 250/2019, PS Darya Ganj, Bail order dated 09.01.2020 Page No. 8 of 13 Ba:r & Bench (www.barandb,ench.com) 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 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

FIR No. 250/2019, PS Darya Ganj, Bail order dated 09.01.2020 Page No. 9 of 13 Ba:r & Bench (www.barandb,ench.com) 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. Offence Bailable/ Non Bailable Punishment No. 1. 147 IPC Bailable Two years 2. 148 IPC Bailable Three Years 3. 149 IPC Accordingly as offences Same as for the offence bailable or non bailable 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 to Non Bailable Five Years Public Property Act 11. 4 of Damage to Non Bailable Not less than one year but Public Property Act may 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.

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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

FIR No. 250/2019, PS Darya Ganj, Bail order dated 09.01.2020 Page No. 11 of 13 Ba:r & Bench (www.barandb,ench.com) 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 but extremely vigilant in cases where they are recording orders of bail to ascertain the compliance thereof.....

a) When bail is granted, an endorsement shall be made on the custody warrant of the prisoner, indicating that bail has been granted, along with the date of the order of bail. b) In case of inability of a prisoner to seek release despite an order of bail, it is the judicial duty of the trial courts to undertake a 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 its execution and enforcement. e) In case a judge stands transferred before the execution, it shall be the responsibility of the 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;

FIR No. 250/2019, PS Darya Ganj, Bail order dated 09.01.2020 Page No. 12 of 13 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

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