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Section 439(1) of Cr.P.C. confers special powers on the High Court or the Court of Session in respect of bail. There is no ban imposed under Section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment of life and the same was upheld by High Court of Delhi through the learned bench led by Justice Subramonium Prasad in the case of SHRI ARUN KUMAR @ ARUN KUMAR MALIK vs. STATE [BAIL APPLN. 2312/2021] on 01.02.2022.

The facts of the case are that the complainant received a call from his son Asif informing him that a huge crowd of around 100 people had gathered near their house in support of NRC and CAA. The crowd entered their house after breaking open the locks, and set it on fire. The complainant’s family members and employees rushed to the top floor of the house and were later safely rescued from the roof of residence. Complainant’s mother, Smt. Akbari, who was 85 years old could not reach the rooftop due to her age and after extinguishing the fire, her body was found lying on a folding bed.

It is stated that the petitioner was arrested and has been in custody since then. The petitioner had filed three bail applications before the Court of Sessions and subsequently the same were dismissed by the Learned Judge of the Trial Court. Therefore, the petitioner seeks bail through the present petition.

The petitioner’s counsel contended that the accused was falsely implicated in the present matter and that there exists no evidence which can prove the connection of the petitioner to the incident beyond reasonable doubt. Therefore, continued incarceration will violate the petitioner’s right to life and personal liberty under Article 21 of the Constitution of India.

The defendant’s counsel contended that the mob of which the petitioner was a part had the knowledge that in all probability the fire would result in the death of residents. He submitted that this attracts the offence of Section 302, IPC and considering the gravity of the offence the accused should not be released on bail.

According to the facts and circumstances of the cases, the Court was inclined to grant bail to the Petitioner in exercise of its power u/s 439(1) of Cr.P.C and accordingly, the bail application was disposed of.

The Court observed that, “there is no blanket bar as such which is imposed on the Court on granting of bail in such cases and that the Court can exercise discretion in releasing the accused, as long as reasons are recorded which clearly disclose how the discretion has been exercised. Section 439(1), Cr.P.C. of the new Code confers special powers on the High Court or the Court of Session in respect of bail. There is no ban imposed under Section 439(1), Cr.P.C. against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment of life”.

Click here to read the Judgment

Judgment reviewed by – Shristi Suman