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Applicability of Section 149 IPC read with Section 302 IPC, cannot be done on the basis of vague evidence and general allegations: High Court of Delhi

In order to convict an accused with the aid of Section 149, a clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused then the mere fact that the accused was present or armed would not be sufficient to prove common object. It is, therefore, noted that the applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations. These were stated by High Court of Delhi, consisting Justice Subramonium Prasad in the case of Mohd. Shoaib @ Chutwa vs. State [BAIL APPLN. 2359/2021] on 18.01.2022.

The facts of the case are that the instant Bail Application are that a protest against the Citizenship (Amendment) Act, 2019 (hereinafter, “CAA”) had taken place. As per the FIR, the Complainant rushed to Bhagirathi Vihar where he was informed that the house of owner of Anil Sweets, which was located in Chaman Park, Main Brijpuri Road, had been set ablaze by rioters. The FIR states that when the Complainant and the Beat Constable reached the said house, they found the door to be broken and house to be completely burnt. On inspecting the second floor, the Complainant noticed a semi-burnt body lying in the corner. The FIR further states that the deceased seemed to be about 20 years old, and that both the arms and legs of the body were chopped off. It was found that the burnt body belonged to a person named Dilbar who was a waiter at the sweet house. It is stated that investigation is now complete and chargesheet was filed against the Petitioner on 04.06.2020 wherein the Petitioner was added.

The learned Counsel for the Petitioner submitted that the investigation was tainted and the Petitioner is an innocent person who has been falsely implicated in the matter herein. He submitted that there is no clinching evidence against the Petitioner and that even the initial statement of the eyewitness Himanshu did not factor in the presence of the Petitioner herein. Merely the statement of the eyewitness cannot be relied upon to prolong the incarceration of the Petitioner. He further argued that the CDR which allegedly places the Petitioner in the vicinity of the SOC is not conclusive. The CCTV footage allegedly placed the Petitioner near the SOC around 4 PM, but the incident occurred after 9 PM. Therefore, it was submitted that it cannot be ascertained if the Petitioner was at the SOC when the alleged incident had occurred. The learned Counsel for the Petitioner has also submitted that co-accused [email protected] has been granted bail by this Court and, thus, the Petitioner also deserves to be enlarged on bail on the ground of parity. The learned Counsel concluded his submissions by stating that the Petitioner has already spent almost two years in jail and that this is a violation of his right to personal liberty under Article 21 of the Indian Constitution, therefore, the petitioner should be granted bail.

The learned Counsel for the respondent submitted that the Petitioner actively participated in the deadly riots wherein the deceased Dilbar Negi was burnt alive. He has submitted that the present case emerges from a deep-rooted conspiracy which was hatched under the garb of democratically opposing CAA. It was contended that the Petitioner was identified in the CCTV footage retrieved from Rajdhani Public School where he could be seen instigating others. He has submitted that the Petitioner can be seen wielding an iron rod. He brought the attention of the Court to the gravity of the offences and its heinousness while opposing the instant bail application. He submitted that the object of Section 149 IPC is different as it is impossible to identify everyone and that it is enough if one can show that the accused is a part of the riotous mob which led to the death of the victim. He has submitted that it is of no consequence that no specific conduct can be attributed to the Petitioner and that having participated in the riotous mob, the Petitioner is responsible for not only his own actions, but also the actions of the others.

The High Court of Delhi held that in order to convict an accused with the aid of Section 149, a clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was present or armed would not be sufficient to prove common object. It is, therefore, noted that the applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations. When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before arriving at the conclusion that every member of the unlawful assembly inhabits a common intention to accomplish the unlawful common object. There cannot be an umbrella assumption of guilt on behalf of every accused by the Court, and every decision must be taken based on a careful consideration of the facts and circumstances in the matter therein. In view of the facts and circumstances of the cases, Court granted bail to Petitioner stating he cannot be made to languish behind bars for a longer period of time and that the veracity of the allegations levelled against him can be tested during trial. Accordingly, the bail application was disposed of.

Judgment reviewed by Shristi Suman. Read Judgment

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